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These records pertain to the Presidential Appointment of Federal Judges.
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Ninth Circuit Court of Appeals [1]
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286185835
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Ninth Circuit Court of Appeals [1]
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These records pertain to the Presidential Appointment of Federal Judges.
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45176-003
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Records of the White House Office of Counsel to the President (George H. W. Bush Administration)
Lee S. Liberman Circuit Court of Appeals Files
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Originally Processed With FOIA(s):
FOIA Number:
1998-0205-F
1998-0205-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Counsels Office, White House
Series:
Liberman, Lee S., Files
Subseries:
Circuit Courts of Appeals Files
OA/ID Number:
45176
Folder ID Number:
45176-003
Folder Title:
Ninth Circuit Court of Appeals [1]
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12
10
2
5
121pages
C.P.Cl.
BEEHLER, PAVITT & BETHEL'
U.S. AND FOREIGN PATENT, TRADEMARK, COPYRIGHT AND RELATED LAW EXCLUSIVELY
610 NEWPORT CENTER DRIVE, SUITE 200
ORIGINALLY HAZARD AND HAZARD
REPRESENTATIVE ASSOCIATE OFFICES
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OSAKA, JAPAN
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melbourne, AUSTRALIA
NEWPORT BEACH
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SEOUL, KOREA
February 12, 1991
TELECOPIER (714) 640-7387
*GEORGE FRAZIER BETHEL
A PROFESSIONAL CORPORATION
OF COUNSEL
BEEHLER & PAVITT
Ms. Lee Liberman
Associate Counsel to the President
The White House
Washington, D.C. 20501
Re: California U.S. Central District Court Vacancies
Dear Lee:
This is to apprise you of my desire to fill one of the U.S. District
Court positions here in the Central District of California, so that you
will know I am sincerely interested in serving on the District Court, as
well as on the Federal Circuit. My interest runs deeply into the
procedural and substantive issues, and also the prospect of working with
the Federal Judicial Center.
Have you had a chance to write anything since your article in the
American University Law Review? I know you were somewhat concerned
about the fact you did not have a chance to edit it as much as you would
have liked to. However, I thought it was written with your normal
enthusiastic high standards.
Cordially,
GFB/lg
By George F. Bethel
40-24
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
to lee likema
o OUTGOING
H INTERNAL
CA9
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent: Andrew Card
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: letter from Dave Frohnmayer - interest in 9th credit vacancy
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUOFL
ORIGINATOR
91,01,18
/
/
Referral Note:
CUAT 23
A
9/10/18
5 9/102/01
Referral Note:
CUGRAY
I
/
/
/
/
Referral Note:
CVAT 07
I
/
/
/ /
Referral Note:
/
/
/ /
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I Info Copy Only/No Action Necessary
A - Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
8. . Non-Special Referral
S Suspended
D . Draft Response
S - For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
THE WHITE HOUSE
1-18-91
Dear Dave-
Thank you Po your letter, interest and
understanding.
I will mahe sure the appropriate
people here are aware of your" very strong
interest." I will also make sure they know
of my enthusiastic endorsement.
Keep in touch. - I will!
Sincerely, Andy Card
THE WHITE HOUSE
WASHINGTON
Honorable Dave Frohnmayer
Attorney General of Oregon
2875 Baker Boulevard
Eugene, Oregon 97403
AC HAS SEEN
DAVE FROHNMAYER
Attorney General of Oregon
2875 Baker Blvd.
Eugene, Oregon 97403
January 15,1991
Dear Andy:
Iknow your mind is on many things
these days. honetheless, I deeply appreciate
your willingness to consider my very strong
intered in the 9th Circuit vacancy.
vita. as you Dr requested is weighted Dendose exclusively an to updated
professional considerations. of I should
please let me know. ( Dhave Packwood provided
recast it, or if you wish other information,
this were kind enough jointly c/o recommend
vita to Senators Hatfuld and
who my name to the attorney General
all best wishes, andy I hope you
Can help. In The meantime, our
thoughts are with you, your colleagues
and the President as you confromed
momentous decisions.
Warmest regards,
Mare
DAVE FROHNMAYER
Attorney General of Oregon
Residence
100 Justice Building
2875 Baker Boulevard
Salem, Oregon 97310
Eugene, Oregon 97403
(503) 378-6002
(503) 686-0434
I.
PROFESSIONAL BACKGROUND
Attorney General of Oregon (Elected: 1981-85; 1985-89;
1989-93)
-
Chairman, Western Conference of Attorneys General,
1986-87
-
President, National Association of Attorneys
General, 1987-88
-
Wyman Award, 1987 (awarded each year to the single
Attorney General who best exemplifies the goals of
the office)
Professor of Law (1971-80) and
Special Assistant to the University President (1971-79)
University of Oregon (Eugene, Oregon)
-
Taught Constitutional law, Legislation, Torts,
Legislative & Administrative Processes, Legal
Issues in Health Care, Legal Issues in Education
-
Legal counsel to President of University
State Representative
Oregon Legislative Assembly, three terms (1975-80)
-
Served on Judiciary, Human Services, Education and
other committees and task forces
-
Voted highest in ranking of all 90 legislators in
1979 session for "integrity and courage"
(Oregonian, August 1979)
Consultant
Civil Rights Division, U.S. Department of Justice
(1973-74)
DAVE FROHNMAYER
Page 2
Assistant to the U.S. Secretary of Health, Education and
Welfare (1969-70)
-
Writer and policy assistant for Secretaries Robert
Finch and Elliott Richardson
-
Top secret security clearance
-
Helped develop health policy strategy for White
House white paper
Associate, Pillsbury, Madison & Sutro
San Francisco, California (1967-69)
-
Banking, commercial law, antitrust
-
Pro bono indigent representation pursuant to
appointment as counsel by Federal District Court
II. EDUCATION
Public Schools; Medford, Oregon
Harvard College, 1962, A.B.
-
Magna Cum Laude in Government
-
Thesis: "The Concept of the Elite and Liberal
Democratic Thought"
-
Phi Beta Kappa and the Detur Prize
-
Publication: "The Concept of Totalitarianism and
Present Day Soviet Russia," Adams House Journal
of the Social Sciences
Oxford University, 1964, B.A. in Philosophy, Politics
and Economics
-
Rhodes Scholar
-
President of Wadham College Debating Society
-
Writer for The Oxford Tory
University of California, School of Law (Boalt Hall),
Berkeley, California, 1967, J.D.
-
Member, Board of Editors, California Law Review
Research and Chief Note and Comment Editor)
-
Order of the Coif
-
Elected Graduation Class Speaker
Oxford University, 1971, M.A. in Philosophy, Politics
and Economics
DAVE FROHNMAYER
Page 3
III. PROFESSIONAL STANDING
A.
Ratings
Martindale-Hubble rating (1990) of "a.v." (highest
rating possible by this authoritative private
reference service for American lawyers).
Listed in: Who's Who in America; Who's Who in
American Law; Who's Who in the West.
B. Bar Memberships and Admissions
United States Supreme Court
United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Tenth Circuit
Oregon Supreme Court
Oregon Court of Appeals
Member, Oregon State Bar
Member, California State Bar (inactive)
IV. HONORARY DEGREES AND AWARDS
Outstanding Senior Man at Medford High School, Medford,
Oregon
Detur Prize, Harvard
Phi Beta Kappa, Harvard
Rhodes Scholar, Oxford
Order of the Coif, University of California at Berkeley
Outstanding Educator of America, 1974
Eugene Junior First Citizen for Distinguished Community
Service, 1974
Selected one of Five Outstanding Young Men of Oregon,
1975
Selected one of 50 legislators from 25 states to attend
Eagleton Institute Conference on State Legislative
Reform, 1975
Roger W. Williams Freedom of Information Award, Oregon
Newspaper Publishers Association, 1981
Pioneer Award, University of Oregon, 1985
Wyman Award for Outstanding Service, National
Association of Attorneys General, 1987
Parents of the Year Award (with spouse), Oregon
Division of the American Association for Marriage
and Family Therapy (1988)
DAVE FROHNMAYER
Page 4
Honorary Doctorate of Laws, Willamette University, 1988
Honorary Doctorate of Public Service, University of
Portland, 1989
Oregon Chapter of Leukemia Society of America Service to
Mankind Award, 1990
V. SUPREME COURT ADVOCACY
Personally argued and won six of seven cases before the
United States Supreme Court -- the most cases and best
record of any current state Attorney General.
1. Oregon V Kennedy, 456 US 667 (1982) (double
jeopardy does not bar retrial of accused after
prosecutor's prejudicial comment) (state prevailed)
2. Oregon V Bradshaw, 462 US 1039 (1983) (Miranda rule
not expanded to exclude accused defendant's
voluntary admissions initiated after proper police
warnings) (state prevailed)
3. Tower V Glover, 467 US 914 (1984) (public defender
not entitled to absolute immunity in case alleging
massive and improbable conspiracy with prosecutors
and judges) (state did not prevail)
4. Oregon V Elstad, 470 US 298 (1985) (Miranda rule
not extended to exclude statements of defendant who
was readvised of right to counsel after initial law
enforcement error) (state prevailed)
5. Oregon Department of Fish & Wildlife V Klamath
Indian Tribe, 473 US 753 (1985) (scope of treaty
interpretation concerning state regulation of
hunting and fishing rights on former reservation
land) (state prevailed)
6. Whitley V Albers, 475 US 312 (1986) (inmates
injured in suppression of prison riot not entitled
to recover damages under $1983 for alleged
violation of Eighth Amendment "cruel and unusual
punishments" clause) (state prevailed)
DAVE FROHNMAYER
Page 5
7. Employment Div. Department of Human Resources of
Oregon V. Smith, 110 S Ct 1595 (1990) (state can
deny unemployment compensation for work-related
misconduct based on use of drug, notwithstanding
free exercise of religion claim for peyote use)
(state prevailed) (see attached analysis of oral
argument)
VI. SIGNIFICANT PROFESSIONAL RESPONSIBILITIES
A.
Exercised national leadership in major litigation
of historic significance:
1. Oil Overcharge Litigation
(a) United States V Exxon. Co-chaired state
Attorneys General task force and
negotiating team since 1982. Selected by
peers to present oral argument on appeal
for 54 states, territories and
possessions. Prevailed on oral argument,
resulting in distribution of $2.1 billion
in indirect restitution to consumers
through states. This was the
then-largest final civil judgment in the
history of American law. See United
States V Exxon, 773 F2d 1240 (Temporary
Emergency Court of Appeals, 1985) cert
denied 196 S Ct 892 (1986).
(b) In re Stripper Well Litigation. Co-chair
of states' negotiating team. This
extended proceeding culminated in the
then-largest civil settlement in the
history of American law (between $4-6
billion). (administrative litigation
continues)
I helped lead and participated in lengthy
negotiations with states, the federal
government, private parties,
representatives of the petroleum industry
and the general public. I presented the
DAVE FROHNMAYER
Page 6
single oral argument on behalf of all
states, territories and possessions in
favor of the settlement. (See 653 F Supp
108 (Dist Kan, 1986)) This judgment
continues to benefit consumers of all
American jurisdictions. (Note attached
letter concerning my participation from
chief U.S. Government negotiator for the
Department of Energy, Avrom Landesman.)
B.
Supervised one of the largest law offices in
Pacific Northwest for 10-year period -- practice
involves defense against all criminal appeals
(including capital cases), state civil litigation,
consumer protection, organized crime prevention,
child support enforcement, and legal advice and
services to all Oregon state agencies and
departments.
C.
Supervised state civil litigation and participated
in joint federal and state investigation and
prosecution of criminal acts perpetrated by
leadership of Rajneesh commune in central Oregon.
(1983-86) (Largest criminal conspiracy in history
of Oregon.)
D.
Co-authored and supervised publication of
significant manuals on administrative proceedings
and open government legislation. Organized and
keynoted major conferences on public law topics for
citizens, government officials and attorneys.
(1981-91)
E.
Editorial committee member and contributing author,
The Office of Attorney General: Powers and Duties,
(National Association of Attorneys General 1988))
Author and co-author of chapters entitled
"Structure of State Legal Services" and "State
Administrative Law."
DAVE FROHNMAYER
Page 7
VII. PRIZES
Each of the important professional competitions noted
below was open nationally to all members of the American
Bar Association. Each submission was judged anonymously
by a panel of experts.
A.
First Prize, American Bar Foundation Samuel Poole
Weaver Constitutional Law Essay Competition
($5,000), 1972. Subject: "The Separation of
Powers: An Essay on the Vitality of a
Constitutional Idea." Published 52 Oregon Law
Review 211 (1973).
B.
First Prize, American Bar Foundation Samuel Poole
Weaver Constitutional Law Essay Competition
($5,000), 1974, "An Essay on Executive Privilege."
(First double winner in history of this
competition.)
C.
One of three first prizes, National Legal Center
for the Public Interest ($1,000), 1979. Subject:
"Official Responsibility: An Essay in Advocacy."
Published Oregon State Bar Bulletin Forum, Vol. 2,
No. 1 (Jan. 1980).
D.
First Prize, American Bar Association Ross Essay
Competition ($5,000), 1980. Subject: "Regulatory
Reform: A Slogan in Search of Substance.'
Published 66 ABA Journal p. 871 (July 1980).
VIII. CRIMINAL LAW
-
Executive Committee, Oregon District Attorneys
Association (1981-present)
-
Chair, Governor's Special Commission Against
Violent Crime (1982-86)
-
Chair, Governor's Commission Against Organized
Crime (1981-present) (now merged to function also
as U.S. Attorney's Law Enforcement Coordinating
Committee)
DAVE FROHNMAYER
Page 8
-
Author of Oregon RICO Act (see Frohnmayer, Arnold &
Hamilton, "RICO: Oregon's Message to Organized
Crime,' 18 Willamette Law Review 1 (1982) )
-
Endorsed for Governor by all 36 District Attorneys
and all 36 Sheriffs in Oregon (1990)
IX. SCHOLARSHIP AND PUBLICATIONS: SELECT BIBLIOGRAPHY
The following publications develop the author's
perspectives on the following major themes: 1) the need
for judicial self-restraint; 2) the importance of
controls over abuses of administrative agency powers; 3)
the role of elected officials in a separation of powers
government; and 4) new mechanisms to assert the
continuing importance of federalism in the American
political structure:
A.
Administrative Law
1. Frohnmayer, "The Oregon Administrative
Procedure Act: An Essay on State
Administrative Rulemaking Procedure Reform,"
58 Oregon Law Review 411 (1980) (explaining
complex statute and comparing state and
federal administrative law developments).
2. Frohnmayer, "Regulatory Reform: A Slogan in
Search of Substance," 66 ABA Journal 871
(1980) (Ross Essay Prize) (analyzes sources of
regulatory power by federal agencies and
proposes legislative and administrative
reforms to curb excesses of authority).
3. Frohnmayer, "National Trends in Court Review
of Agency Action: Some Reflections on the
Model State Administrative Procedure Act and
the New Utah Administrative Procedure Act,"
3 BYU Journal of Public Law 1 (1989)
(comparing federal and state trends in
administrative law and proposing controls on
abuse of agency authority).
DAVE FROHNMAYER
Page 9
B.
Legislative Processes
1. Linde & Frohnmayer, "Prescription for the
Citizen Legislature: Cutting the Gordian
Knot, = 56 Oregon Law Review 3 (1977)
(diagnosing the failures of the state
legislative process and proposing fundamental
reform to preserve the citizen legislature).
2. Frohnmayer, "The Legislative Function,"
67 Oregon Law Review 41 (1988) (discussion of
modern developments in state legislative
procedures -- overtly opposing the creation by
judiciary of monetary entitlements through
expansive interpretation of state
constitutional provisions).
C.
Federalism
1. Frohnmayer, "A New Look at Federalism: The
Theory and Implications of Dual Sovereignty,"
12 Environmental Law 903 (1982) (this article
examines the practical and theoretical
justifications for continued vitality of the
federalist principle of state authority).
2. Frohnmayer, "The Compact Clause, The
Appointments Clause and the New Cooperative.
Federalism: The Accommodation of
Constitutional Values in the Northwest Power
Act, " 17 Environmental Law 767 (1987) (this
article examines creative possibilities of
cooperative interstate agreements under the
Compact Clause of the United States
Constitution).
The author participated in writing the amicus
curiae brief and presented oral argument on
behalf of the northwest states and the
National Governors Association in the
principal case, Seattle Master Builders Ass'n
V Pacific Northwest Elec. Power and
Conservation Planning Council, 786 F2d 1359
(9th Cir 1986), cert denied, 479 US 1059
(1987).
DAVE FROHNMAYER
Page 10
D. Judicial Process and Judicial Review
1. Frohnmayer, "Legislatures and the Courts:
Guarding the Guardians," 59 State Government 7
(1986) (critical of activist courts and noting
limitations of courts as advocates of new
social policies).
2. Frohnmayer, "Of Legislative Intent, the Perils
of Legislative Abdication, and the Growth of
Administrative and Judicial Power," 22
Willamette Law Review 219 (1986) (argument for
clear legislative standards to control
otherwise questionable activism by courts and
administrative agencies).
3. Frohnmayer, "The Courts as Referee,' in
Frohnmayer & Baum, eds. The Courts: Sharing
and Separating Powers at p. 51 (Eagleton
Institute of Politics: 1989) (symposium
presentation noting abdication of authority by
elected officials to courts, and urging
reassertion of legislative and executive's
institutional power).
4. Frohnmayer, "The Separation of Powers: An
Essay on the Vitality of a Constitutional
Idea," (Weaver Essay Prize, supra) (urges
vigorous assertion of powers by legislative
and executive branches without requirements of
exhaustive judicial review).
5. Frohnmayer, "Effective Written Argument," in
Oregon State Bar Continuing Legal Education,
Appellate Practice chapter 2 (1987)
(discussing effective techniques for briefing
federal and state appeals).
X. NATIONAL AND COMMUNITY SERVICE
Member, Board of Directors, National Marrow Donor Program
Member, Board of Directors, Lane County Chapter,
American Red Cross
Member, Board of Directors, Oregon Chapter, The Nature
Conservancy
DAVE FROHNMAYER
Page 11
Founder and Coordinator, Fanconi's Anemia Support Group
Campaign Steward, Oregon Committee for the Humanities
Honorary Chairman, Children's Miracle Network Telethon
for Sacred Heart Hospital (Eugene) and Doernbecher
Children's Hospital (Portland)
Member, Board of Content Advisors, The Constitution
Project (public television and educational film series
on the United States Constitution)
Advisory Board Member, Oregon Federation of Parents for
a Drug Free Youth
Board Member, Citizens for a Drug Free Oregon
Member, Honorary Support Group of Oregon Generations
Together
Honorary Chairperson, 1989 and 1990 Oregon Special
Olympics Law Enforcement Torch Run
Member, Doernbecher Children's Hospital Foundation
Advisory Board
XI. PERSONAL
-
Born Medford, Oregon; July 9, 1940
(SSN 542-44-8898)
-
Married to Lynn Diane Frohnmayer, National
Consultant on Child Abuse and Permanent Planning
for Foster Care Children
-
Children:
Daughter, Kirsten, born 2-10-73
Son, Mark, born 7-19-74
Daughter, Kathryn, born 11-18-78
Son, Jonathan, born 12-7-84
Daughter, Amy, born 2-25-87
-
Health: Excellent
-
Hobbies: Skiing, white-water rafting, cycling,
gardening, music
confronted with the hidden, abused
outset. is, "Does the free exercise
was not a theoretical problem, since
understandable. emotionally driven
child, he told Burns, could not rely on
clause (of the First Amendment re.
the Oregon courts now had before
effort to shift the hearing away from
a neglect or abuse statute. Added
quire every state to exempt religious
them a plea for exemption from Ore-
the antidrug atmosphere Frohn-
Scalia surcustically: "Tough luck.
peyote use by the Native American
gon's drug laws for religious users of
mayer had left.
kid. You're going to have to die,
Church. or perhaps even beyond
marijuana.
Justice Scalia. for one. was not di-
huh?"
that. other substance use by other re.
Helping Frohnmayer's argument
verted. "Do you disagree with what
Still not getting the answers he
ligions, from the reach of generally
along further. Justice Scalia sug-
the attorney general said. that the
wanted. Scalia scolded Burns: "You
applicable criminal laws?'
gested that it was not just a problem
whole purpose of the ingestion of
have to fall back on the position that
Frohnmayer began with a some-
of marijuana, but of "any other hallu-
peyote is its hallucinogenic effect?"
if there is no other way to prevent the
what charitable bow to the sincerity
cinogenic drug, I would assume."
Dorsay said he did not: however, he
social harm-even if it's as severe us
of Native American Church mem-
Said the attorney general somewhat
did disagree "that that ingestion is
the death of an individual-no other
bers' fear that their religion would be
demurely: "Justice Scalia, that Is one
harmful.'
way to prevent that other than to pun-
threatened if peyote use were out-
of the major reasons we have brought
He then launched into an argument
ish the person who doesn't give you
lawed. He thon used a question by
this case to this Court for a second
that the Native American Church's
the information, that's too bad; you
Justice Scalia to emphasize that the
time. The case. he added, "is in fact
history showed no evidence of mis-
must let the harm occur.
case would extend to other claims of
the thin edge of the wodge in which
use of peyote-clearly an attempt to
Dryly. Burns said that situation did
religious drug use.
analytical distinctions are extremely
refocus the Court's attention on the
not exist "in the real world. in Mary-
Perhaps the most compelling as-
difficult to draw."
possible virtue of a single, narrow ex-
land. But instead of talking about
pect of the attorney general's "slip-
The attorney general then maneu-
emption for that church's practice.
immunity as a way of getting informa-
pery slope" argument was the point
vered well around a line of question-
Dorsay was unable to go very far
tion from the mother, Burns contin-
he made more subtly. Playing upon
ing Justice Stevens initiated. If a state
with that, however, because he soon
ued to focus on the neglect statute
the Court's worries about the scourge
could flatly ban the use of drugs in
got bogged down in a series of ques-
alternative.
of drug abuse. Frohnmayer stressed
religious ceremonies. Stevens asked,
lions over the unemployment com-
Later, Burns missed repeated op-
heavily the "dangerous and power-
what about sacramental winc?
pensation issue.
portunities to show compassion for
ful" nature of pcyote as a hallucino-
Frohnmayer first-said that that was
Taking up the constitutional argu.
Maurice's plight without abandoning
genic drug. He then linked that with
not a controlled substance, adding
ment, the Native Americans' lawyer
his own client. For example. Justice
the prospect that "other religions us-
that an argument for "religious ac-
then tried to meet Frohnmayer's drug
Kennedy told Burns at one point,
ing other drugs" would be next in line
commodation" would be different for
abuse arguments directly. "We do
"There is the very real possibil-
for h religious exemption.
wine.
not have any evidence in this case
ity that while we sit here this morn-
It was obvious that Frohnmayer
Seeing A way to strengthen his ar-
that peyote has been abused or that it
ing. that child is in need of care."
was attempting to convince the jus-
sument against peyote, the attorney
contributes to the drug abuse prob-
Barely conceding the point. Burns
tices that Smith was drawing the
general renewed his empliasis on the
lem." he asserted.
commented blandly. "To be frank.
Court toward legitimizing illicit use
"very dangerous" character of a hal-
But that did not work particularly
your judgment [about that) is as good
of is wide variety of destructive sub-
lucinogenic drug.
well for Dorsay, either. Justice Sca-
as mine.
stances, worsening the nation's over-
Frohnmayer still had one more
lia, while conceding that there might
And when Kennedy pressed Burns
all drug problem.
"slippery slope" plea to make for his
be no risk of peyote's use spreading
to shy whether his client's Fifth
beyond that one church. neverthe-
Amendment right "overrides any in-
less wondered why states could not
terest we have in the welfare of that
ban even that use. on the simple
child," he found no way to soften an
If peyote lawfully could be used in a
premise that the drug was "danger-
affirmative answer. Finally, Ken-
ous."
nody remarked. "And $0 you say.
religious ritual, "how about marijuana use
When Dorsay replied that an offi.
ing that there is nothing that can be
cial belief that a religious practice
done for the welfare of the child." At
by a church?" Justice O'Connor
might be harmful was not enough to
that point. Burns's argument seemed
ban it. Scalia interrupted. "Excuse
beyond rescue.
wondered.
me, what do you mean? You
would not accept scientific evidence
DRUGS AND RELIGIOUS FREE-
that the use of peyote is physically
DOM: David Frohnmayer's argu-
harmful?" Dorsay said he would not
ment in Employment Division of Ore-
accept that. It was obvious. how.
80n V. Smith was a reminder of an old
Justice Kennedy saw the connec-
side. He claimed that religious prac-
ever, that he was simply inviting the
adage: A "slippery slope" argument
tion immediately, wondering if there
tices "can and do change. Thus, he
Court into an unproductive inquiry:
is one of the easiest to make to the
was any evidence of "the danger that
said, the Court should be wary of fix-
how to decide which scientific evi-
Court, but it is also one of the hardest
peyote is diverted from religious use
ing a practice as constitutionally pro-
dence to accept.
to make well. Frohnmayer did so well
and, say. sold on the street in the nor-
tected so that there would be no stop-
A bit later Justice White, picking
with it that his opponent. Craig Dor.
mal drug distribution channels. The
ping it if, in the future, it became an
up on the main "slippery slope
say, seemed caught in the downhill
state's lawyer said that it was so
undeniably unsafe practice.
theme of the attorney general.
slide.
available, "although not in great
The attorney general's perfor-
pressed Dorsay about possible
The Smith case is before the Court
amounts." The unstated, but clear.
mance confronted his adversary with
claims for religious exemptions for
a second time. It involves two mem-
implication was that the flow might
an uphill struggle. Dorsay, the direc-
other drugs, The lawyer argued that a
bers of the Native American Church
increase after the Smith case.
tor of the Oregon Legal Services Na-
ruling his way would probably extend
who were fired from their county jobs
When Frohnmayer was left alone
tive American program in Portland,
to other churches that make peyote
as drug abuse counselors because
to pursue his own line of argument.
sensibly took on first the issue that
use a ritual. but, he added. peyote
they ingested peyote buttons as
he ticked off the governmental inter-
Justice Stevens's questions about
would be "unique."
part of a sacred Indian religious rit-
ests in banning peyote and other
sacramental wine had raised. He
Justice O'Connor, however, was
ual. They were denied unemploy-
drugs from authorized religious use.
slyly suggested that Frohnmayer had
not willing to let him stop there:
ment compensation-a denial they
He warned of "a patchwork of ex.
made what WHS, in essence. an ethni-
"How about marijuana use by a
claimed violated their religious free-
emptions of other drugs on R drug-hy-
cally biased argument.
church that uses that as part of its
dom.
drug. religion-by-religion, believer-
"If Indian people were in charge of
religious sacrament?" Dorsay an-
In 1988 the Court ruled that if pay-
by-believer basis."
the United States right now, or in
swered, weakly. "Well, see, I think
ore use was is crime in Oregon, the
In another variation of the "slip-
charge of the government,' said Dor-
we can get into a lot of examples. and
state need not pay unemployment.
pery slope" argument, the attorney
say, "and you look at the devastating
Idon't want to go down that road 100
but the Court did nor address
general voiced his worry that if the
impact that alcohol has had on Indian
(ar. Tellingly, O'Connor inter-
whether the Constitution protected
Court allowed only the use of peyote
people and Indian tribes through the
rupted. "I'll bet you don't!" The
the use of such a drug for religious
and only by the Native American
history of the United States, you
courtroom burst into laughter-con-
purposes. Oregon's Supreme Court
Church, then the problem of religious
might find that Alcohol was the
firming how well the Frohnmayer III.
later ruled that it is unconstitutional
favoritism would arise, forcing state
Schedule One substance and peyole
gument had gone over with the
to prosecule Native American
legislatures into the midst of potential
was not listed at all. And we are get-
crowd.
Church members who use the drug in
Establishment Clause problems.
ting here to the heart of an ethnocen-
Indeed. the remainder of the argu-
good faith for religious purposes.
And. he told Justice Kennedy. the
tric view, I think, of what constitutes
ment was largely devoted to ques-
Therefore. the state court concluded.
only way out of those problems
religion in the United States. And I
tions that the attorney general's
the state could not deny unemploy-
would be to "treat other religions
think that needs to be looked at very
argument had stirred among the jus-
ment to the fired church members
clamoring for equal treatment on sim-
hard before determining what is a
tices-including a question (perhaps
Frohnmayer, Oregon's attorney
ilar grounds in similar ways.
dangerous substance and what is
not entirely serious) from Scalia
general. brought the case back to the
Sympathetically. Justice White
not.
wondering about A religious exemp-
Court on the constitutional issue. He
told him a moment later. "You just
The comment. of course, would
tion for human sacrifice. when "only
lost no time suggesting that 0 ruling in
don't want to have 10 face up to those
have been more to the point if the is.
the Aztecs" would be accommo-
favor of Native Americans' usc of
problems. You want not to have any
sue in the case were whether a state
dated.
peyote could not be held to that situa-
exemption at all." Said Frohnmayer:
could ban peyote as a general propo-
There were no points of strong re-
tion alone. The issue. he said at the
"That 13 correct." He added that It
sition. Even 60, it was & somewhat
covery hy Dorsay.
THE AMERICAN LAWYER
JANUARY/FEBRUARY 1990
85
LYLE DENNISON
"July 17, 1986
"Dear Dave,
"As we await the final signal from the District
Court in Wichita to implement the Settlement
Agreement, I wanted to take this opportunity of
letting you know how honored I feel to have worked
with you on this exciting project. It is heart
warming to realize that a man with such outstanding
talent and personal integrity is a leader in the
public sector on behalf of the States. Your good
common sense and healthy insights were instrumental
in making possible what will be regarded as a major
breakthrough in the field of restitution and in the
peaceful resolution of complex litigation. I very
much appreciate the leadership you gave on many
occasions and the wonderful spirit of compromise you
spread throughout the settlement community. I hope
there will [be] future occasions in which our paths
will cross, particularly in peaceful settlements.
With best regards,
Avrom
[Reproduction of actual handwritten letter (see
reverse side) from Avrom Landesman, former Deputy
Special Counsel and Director of Enforcement Programs
for the Economic Regulatory Administration, U.S.
Department of Energy, to Attorney General Dave
Frohnmayer]
ID# 206077
THE WHITE HOUSE
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DATE RECEIVED: JANUARY 21, 1991
NAME OF CORRESPONDENT: THE HONORABLE CONRAD BURNS
COUNSEL'S OFFICE
RECEIVED
SUBJECT: RECOMMENDS JACK RAMIREZ FOR A POSITION ON
THE NINTH CIRCUIT COURT OF APPEALS
FEB 1 1991
ACTION
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January 29, 1991
Dear Conrad:
Thank you very much for your recent letter to the President
highly recommending your Chief of Staff, Jack Ramirez, for
appointment to the Ninth Circuit Court of Appeals.
The President is pleased that so many qualified individuals are
willing to serve in the federal judiciary. We sincerely
appreciate your contacting us and offering your personal
endorsement on behalf of Jack. I have shared your letter with
the appropriate officials for their careful consideration.
Thank you again for your interest in writing.
With best regards,
Sincerely,
Frederick D. McClure
Assistant to the President
for Legislative Affairs
The Honorable Conrad Burns
United States Senate
Washington, D.C. 20510
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COMMITTEES:
CONRAD BURNS
COMMERCE, SCIENCE, AND
MONTANA
TRANSPORTATION
ENERGY AND NATURAL RESOURCES
United States Senate
SMALL BUSINESS
WASHINGTON, DC 20510-2603
4 clure
January 17, 1991
The Honorable George Bush
The White House
Washington, DC 20500
Dear Mr. President:
I recently learned that a vacancy will occur on the
Ninth Circuit Court of Appeals around February 1, 1991.
My Chief of Staff, Mr. Jack Ramirez, has applied for
the appointment to the Ninth Circuit. I believe it would
be an excellent decision for you, for the judicial system,
for this country, and for my state of Montana.
Jack Ramirez, at age 51, has a long and distinquished
political and legal career. He was a senior partner in
Montana's largest law firm before taking a leave of
absence, at my request, to serve as my chief of staff. He
is a noted trial lawyer in Montana and has been honored by
designation as a Fellow of the American College of Trial
Lawyers and an Advocate in the American Board of Trial
Advocacy. He has the highest rating from Martindale-Hubbel
and is listed in America's Best Lawyers.
Jack has also paid his dues as a Republican many
times over. He served over twelve years in the Montana
Legislature. In 1979, he was elected Minority Leader in
the House in only his second term--something that was
unprecedented then and has not occurred since. After his
second term, he gave up his seat in the legislature to run
for Governor of Montana. He won the Republican nomination
in a three-way primary, but lost the general election. He
was later re-elected to the legislature and was immediately
selected again by his peers to serve in the leadership. He
was Minority Leader of the House in his last term when he
decided not to run again for the legislature.
Jack was one of your early supporters, serving as
early as 1986 on the committee promoting your candidacy in
Montana. He is conservative in his philosophy, but he is
also very practical politically. He has been an advisor in
numerous Republican campaigns in Montana, including my
successful campaign against former Senator John Melcher.
I obviously do not want to lose Jack as my Chief of
Staff, but he has too much to offer this country and
deserves more personally.
The Honorable George Bush
January 17, 1991
Page 2
Montana has not fared well on the court. The Ninth
Circuit has traditionally selected one judge from each of
the smaller states. Montana's "representative" has been
Judge James R. Browning, a Kennedy appointee. Judge
Browning received his law degree from the University of
Montana Law School in 1941, but left the state immediately
after graduation and never lived or worked as an adult in
Montana. He came to Washington after Law school, worked
for the Justice Department and then a Washington law firm,
and was appointed to the circuit court in 1961 by President
Kennedy. Browning, who is 71 years of age, recently went
on a reduced caseload. All other states in the Ninth
Circuit have fully active representatives. It is clearly
Montana's turn for an appointment to the Ninth Circuit,
particularly when we have such an outstanding candidate.
I do not know of a man in Montana who has more
support from the legal, business, government and political
communities. I sincerely ask for your favorable action.
Sincerely,
Conrad Burns
United States Senator
CRB/pad
CC:
Mr. Fred McClure
Mr. Boyden Gray
The Honorable Richard Thornburgh
Mr. Chase Untermeyer
ID# 208633
THE WHITE HOUSE
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rec'd 2/7
5:30 pm
DATE RECEIVED: JANUARY 30, 1991
NAME OF CORRESPONDENT: THE HONORABLE TED STEVENS
SUBJECT: RECOMMENDS JUDGE ANDREW KLEINFELD FOR AN
APPOINTMENT TO THE NINTH CIRCUIT COURT OF
APPEALS
ACTION
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January 31, 1991
Dear Don:
Thank you very much for your recent letter to the President
highly recommending Judge Andrew Kleinfeld for appointment to the
Ninth Circuit Court of Appeals.
The President is pleased that so many qualified individuals are
willing to serve in the federal judiciary. We sincerely
appreciate your contacting us and offering your personal
endorsement on behalf of Judge Kleinfeld. I have shared your
letter with the appropriate officials for their careful
consideration.
Thank you again for your interest in writing.
With best regards,
Sincerely,
Frederick D. McClure
Assistant to the President
for Legislative Affairs
The Honorable Don Young
House of Representatives
Washington, D.C. 20515
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January 31, 1991
Dear Frank:
Thank you very much for your recent letter to the President
highly recommending Judge Andrew Kleinfeld for appointment to the
Ninth Circuit Court of Appeals.
The President is pleased that so many qualified individuals are
willing to serve in the federal judiciary. We sincerely
appreciate your contacting us and offering your personal
endorsement on behalf of Judge Kleinfeld. I have shared your
letter with the appropriate officials for their careful
consideration.
Thank you again for your interest in writing.
With best regards,
Sincerely,
Frederick D. McClure
Assistant to the President
for Legislative Affairs
The Honorable Frank H. Murkowski
United States Senate
Washington, D.C. 20510
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January 31, 1991
Dear Ted:
Thank you very much for your recent letter to the President
highly recommending Judge Andrew Kleinfeld for appointment to the
Ninth Circuit Court of Appeals.
The President is pleased that so many qualified individuals are
willing to serve in the federal judiciary. We sincerely
appreciate your contacting us and offering your personal
endorsement on behalf of Judge Kleinfeld. I have shared your
letter with the appropriate officials for their careful
consideration.
Thank you again for your interest in writing.
With best regards,
Sincerely,
Frederick D. McClure
Assistant to the President
for Legislative Affairs
The Honorable Ted Stevens
United States Senate
Washington, D.C. 20510
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ROBERT C. BYRD, WEST VIRGINIA. CHAIRMAN
DANIEL K. INOUYE, HAWAII
MARK O. HATFIELD, OREGON
ERNEST F. HOLLINGS, SOUTH CAROLINA
TED STEVENS, ALASKA
J. BENNETT JOHNSTON, LOUISIANA
JAMES A. McCLURE. IDAHO
QUENTIN N. BURDICK, NORTH DAKOTA
JAKE GARN, UTAH
PATRICK J. LEAHY, VERMONT
THAD COCHRAN, MISSISSIPPI
JIM SASSER, TENNESSEE
ROBERT W. KASTEN, JR., WISCONSIN
United States Senate
DENNIS DECONCINI, ARIZONA
ALFONSE M. D'AMATO, NEW YORK
DALE BUMPERS, ARKANSAS
WARREN RUDMAN, NEW HAMPSHIRE
COMMITTEE ON APPROPRIATIONS
FRANK R. LAUTENBERG, NEW JERSEY
ARLEN SPECTER. PENNSYLVANIA
TOM HARKIN, IOWA
PETE V. DOMENICI, NEW MEXICO
WASHINGTON, DC 20510-6025
BARBARA A. MIKULSKI, MARYLAND
CHARLES E. GRASSLEY, IOWA
HARRY REID. NEVADA
DON NICKLES. OKLAHOMA
BROCK ADAMS, WASHINGTON
PHIL GRAMM, TEXAS
WYCHE FOWLER, JR., GEORGIA
J. ROBERT KERREY, NEBRASKA
JAMES H. ENGLISH, STAFF DIRECTOR
January 29, 1991
J. KEITH KENNEDY, MINORITY STAFF DIRECTOR
Cluri
The Honorable George Bush
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
We understand that a vacancy recently opened up on the
Ninth Circuit Court of Appeals. As you know, Alaska has not
had an active judge on the Ninth Circuit since Judge
Boochever assumed senior status in the mid-1980s. We are
writing to request that you give serious consideration to
selecting an Alaskan to fill the recent vacancy.
We strongly recommend Andrew Kleinfeld, who currently
serves as a U.S. District Court Judge in Alaska. Russell
Holland, the Chief Judge of the District of Alaska, supports
our recommendation.
Judge Kleinfeld enjoys an excellent reputation within
the Alaska Bar Association for his work as a private
practitioner and a judge. During his fifteen years as a
trial lawyer in Fairbanks, he received the highest rating
possible from the Martindale-Hubbell Law Directory for his
ethical and professional standards. His experience as a
trial court judge and his service on the Ninth Circuit and
other appellate panels make him an excellent candidate for
the Ninth Circuit vacancy.
We recommend Judge Kleinfeld to you without
reservation. Enclosed is a copy of his resume. We hope
that you will give his candidacy favorable consideration.
With best wishes,
Cordially,
Zelle-
FRANK H. MURKOWSKI
TED STEVENS
United States Senator
United States Senator
Congressman DON YOUNG for All
Alaska
Enclosure
RESUME OF ANDREW J. KLEINFELD
January 13, 1991
PROFESSIONAL EXPERIENCE
Judge, United States District Court, District of Alaska, since July 14, 1986.
I regularly sit in Anchorage, Fairbanks, and Ketchikan, and have
also sat in Nome. Like most judges in this circuit, I have served on
panels of the Court of Appeals for the the Ninth Circuit. I also
served on an appellate panel for the High Court of American Samoa.
Trial lawyer, Fairbanks, Alaska, 1971-1986.
I was a general practitioner. While the largest part of my practice
was insurance defense litigation, I also did commercial litigation,
plaintiffs' personal injury litigation, business and estate planning,
pro bono litigation, and appellate litigation. In the early years of
my practice, I also did domestic relations and criminal defense
litigation.
The Martindale-Hubbell Law Directory, the comprehensive directory
of the profession, rated me "av," its highest rating for both
professional and ethical standards, from approximately 1981, when I
first had sufficient experience to qualify for that rating. These
ratings are awarded on the basis of confidential written and oral
evaluations by the bench and bar in one's community.
United States Magistrate (part time), Fairbanks, Alaska, 1971-1974.
Law clerk to Justice Jay A. Rabinowitz, Alaska Supreme Court, 1969-1971.
Admitted to Alaska and Massachusetts bars, 1970 and 1973 respectively.
Andrew J. Kleinfeld
Resume
page 2
PROFESSIONAL ACTIVITIES
President, Alaska Bar Association, 1982-1983.
Board of Governors, Alaska Bar Association, 1981-1984.
President, Tanana Valley Bar Association, 1976-1977; vice-president 1974-1976;
treasurer 1973-1974; secretary 1971-1973.
EDUCATION
Harvard Law School, J.D. 1969, cum laude;
Legislation Editor, Harvard Journal on Legislation.
Wesleyan University, Middletown, Connecticut, B.A. 1966, magna cum laude;
Phi Beta Kappa; High Distinction in social studies.
OTHER PUBLIC ACTIVITIES
Since becoming a judge, I have lectured extensively on legal topics for the Alaska
Bar Association, the Tanana Valley Bar Association, and the Anchorage Bar
Association. I have also presented numerous lectures on the Constitution, at
schools, the University of Alaska, Bicentennial events, and elsewhere.
My publications (other than published decisions) include articles and book reviews
on such legal topics as the Alaska civil rule on attorneys' fees awards, landlord
tenant litigation, lawyers for people of moderate means, litigating with the federal
government, school law, and domestic relations law.
Prior to becoming a judge, I was active in Republican Party politics in Alaska,
and served on various boards over the years.
During the 1970s, I served as a lecturer at the University of Alaska on
constitutional law, business law, and estate planning.
From 1985 to 1989, I taught at the Jewish Sunday School in Fairbanks.
Andrew J. Kleinfeld
Resume
page 3
PERSONAL
Born June 12, 1945.
Married since June 18, 1967 to Judith S. Kleinfeld, Professor of Psychology and
Director of Northern Studies, University of Alaska.
Three children, Daniel Jonathan, Rachel Rebecca, and Joshua Seth, 16, 14, and 12
years old.
ADDRESS:
In Anchorage -
In Fairbanks -
Federal Building - U.S. District Court
Federal Building - U.S. District Court
222 West Seventh Ave., Box 12
101 Twelfth Avenue, Box 1
Anchorage, AK 99513
Fairbanks, Alaska 99701
(907) 271-5625
(907) 452-3213
ID# 212344
THE WHITE HOUSE
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DATE RECEIVED: FEBRUARY 12, 1991
NAME OF CORRESPONDENT: THE HONORABLE STEVE SYMMS
SUBJECT: RECOMMENDS JACK S. RAMIREZ FOR THE VACANCY
ON THE NINTH CIRCUIT COURT OF APPEALS
ACTION
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FREDERICK MCCLURE
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CuGray
REFERRAL NOTE:
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InJ
/ /
LAHOV
REFERRAL NOTE:
I 91/02/20 LJ C / /
REFERRAL NOTE:
99DOJ
I 910200 LJ C / /
PPBull
REFERRAL NOTE:
I 910220
C / /
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REFERRAL NOTE:
InJ
A 91/02/20
$ 91/03/04
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February 13, 1991
Dear Steve:
Thank you very much for your recent letter to the President
highly recommending Jack S. Ramirez for appointment to the Ninth
Circuit Court of Appeals.
We appreciate receiving your personal endorsement on behalf of
Mr. Ramirez. I have taken the liberty of sharing your letter
with the Office of the White House Counsel. You can be sure that
the President's advisors will give Mr. Ramirez their most careful
consideration.
Thank you again for your interest in writing.
With best regards,
Sincerely,
Frederick D. McClure
Assistant to the President
for Legislative Affairs
The Honorable Steven D. Symms
United States Senate
Washington, D.C. 20510
FDM:TSB:
bcc: w/ copy of inc to C. Boyden Gray - for appropriate action
bcc: w/ copy of inc to Boyd Hollingsworth - FYI
bcc: w/ copy of inc to Dept. of Justice - FYI
bcc: w/ copy of inc to Katja Bullock - FYI
STEVE S)
IDAHO
21234
Fre Clure
United States Senate
WASHINGTON, DC 20510
February 4, 1991
The Honorable George Bush
President of the United States
The White House
Washington, D.C. 20500
Dear Mr. President:
I understand there may soon be a vacancy on the Ninth
Circuit Court of Appeals. I strongly recommend Jack S. Ramirez,
Chief of Staff to Senator Conrad Burns of Montana.
Jack is clearly a dedicated, skilled professional. He has
enjoyed the support of his colleagues both in the Montana
legislature where he was twice-elected Republican leader and in
the U.S. Senate where he is well-respected.
After 44 years living in Montana, and 20 years litigating
and trying a wide variety of cases including natural resources,
malpractice and railroad and product liability, Jack will serve
the people of the Ninth Circuit with impartiality and experience
in issues critical to the West. In addition to membership in the
appropriate professional and political organizations, Jack was
selected for partnership of his firm in 1972.
It is very fortunate that this vacancy will occur at a time
when someone like Jack Ramirez is available to accept the
nomination. Again, I urge you to select Jack for this most
important judgeship. Please contact me if I could be of any
assistance.
Steve Sincerely Symms Symms
United States Senator
SS/nor
CC. Attorney General Richard Thornburgh
CA9
DISTRICT OF ALASKA
Previous Judicial Positions U.S. Magistrate for the
H. Russel Holland
U.S. District Court, District of Alaska at Fairbanks, 1971-74
Professional Associations Alaska Bar Assn.: President
Chief Judge; Alaska
(1982-83), Board of Governors (1981-84), Fourth Judicial
U.S. District Court; 222 West 7th Avenue; Box 54
District Discipline Panel (1983-86), Fourth Judicial District
Anchorage, AK 99513; (907) 271-5621
Fee Arbitration Panel (1977-80, 1983-86); Alaska Supreme
Spouse: Diane Holland; Children 3 adult children
Court Committee on Civil Rules, late 1970s, early 1980s;
Born 1936; appointed in 1984 by President Reagan
Liaison to Alaska Law Review, Duke Law School, 1983-86;
Education Univ. of Mich., B.B.A., 1958, L.L.B., 1961
Tanana Valley Bar Assn.: 1970-present, President (1975), Vice
President (1974), Treasurer (1973), Secretary (1971-72),
Private Practice Stevens & Savage, Anchorage, 1965-66;
Legislation Committee (1970s, 1980s)
Stevens, Savage, Holland, Erwin & Edwards, Anchorage, 1967-
Political Activities Alaska Republican Party; American
68; solo practitioner, Law Office of H. Russel Holland,
Anchorage, 1968-70; Holland & Thornton, Anchorage, 1970-78;
Israel Public Affairs Committee, Washington; Alaska and
National Right-To-Life
Holland, Thornton & Trefry, Anchorage, 1978; Holland &
Trefry, Anchorage, 1978-84; Trefry & Brecht, Anchorage, 1984
Publications President's Columns as President of the
Government Positions Employee, Alaska Court System,
Alaska Bar Assn., 1982-1983, published in the ALASKA BAR
Anchorage, 1961; Employee, Dept. of Justice (U.S. Attorney's
RAG; Alaska: Where the Loser Pays the Winner's Fees, 24
JUDGES' JOURNAL no. 2, p. 5 (spring 1985); On Shifting
Office), Anchorage, 1963-65
Attorney's Fees in Alaska: A Rebuttal, 24 JUDGES' JOURNAL no.
Professional Associations A.B.A.; Alaska Bar Assn.;
3, p. 39 (summer 1985); Memorandum to School Board, July 1,
Anchorage Bar Assn.
1984, FAIRBANKS DAILY NEWS-MINER, Sept., 1984; Lathrop V.
Lampert Decision Spotlighted, ALASKA BAR RAG, Nov.-Dec.
Other Activities Member, Commonwealth North
1978, p. 7; t Lawyers for People of Moderate Means, 3 UCLA-
(described by Judge Holland as a nonprofit, nonpartisan
ALASKA L. REV., 102 (1973); Schwartz and Jacoby, Litigation
organization, the purpose of which is to "bring wider
with the Federal Government, 1 UCLA-ALASKA L. REV., 102
perspectives to public policy issues affecting Alaska")
(1971); THE BALANCE OF POWER AMONG INFANTS, THEIR
PARENTS AND THE STATE, 4 FAMILY L. Q. 320, 409 (1970), 5
Lawyers' Evaluation Courteous to lawyers and litigants.
FAMILY L. Q. 63 (1971); Teacher Dismissal Legislation, 6
Not influenced by the identities of the parties or the lawyers.
HARVARD J. LEG. 112 (1968); A Divorce Reform Act, 5
Has a current docket; accommodates emergency requests. Has
HARVARD J. LEG. 563 (1968); Dump It on Compuserve (And
knowledge of current legal developments and a good
Set Yourself Free), 1 PCM MAGAZINE 14 (No. 7) Jan. 1984;
understanding of the issues in both complex and ordinary
Easy Menus, COMPUTER USER MAGAZINE, Feb. 1984, at 69.
cases. Rules on motions promptly and knowledgeably. Does
not tend to push too hard for settlement. During trial, dislikes
Noteworthy Rulings 1987: Granted defendants' motion
a lawyer's making numerous objections and somewhat strictly
for summary judgement after veteran brought action against
controls a lawyer's questioning of and general behavior toward
U.S. News & World Report, its publisher, senior editor, and
witnesses.
bureau chief for defamation and other torts for an article
Specific Comments: "Settlement oriented." "Expects
entitled "Vietnam's Sad Legacy: Vets Living in the Wild."
parties to get together and work out procedural things before
Sisemore V. U.S. News & World Report, Inc., 662 F.Supp.
trial." "Well-prepared." "Doesn't promise things he can't do."
1529
"Free from arrogance. Has impressed me more than any judge
1988: Granted State's motion for summary judgement in
I've ever appeared before." "Can be abrupt if attorneys don't
an action brought by Alaskan native villages challenging the
give him what he wants, but extremely courteous man in
state's refusal to recognize tribal court adoption decrees.
general."
Native Village of Venetie, I.R.A. Council V. State of Alaska
1988: Ruled that Rule 11 sanctions would be imposed
against a law firm for non-discovery and nondisclosure of
witness's repudiation of an affidavit used by the law firm as
Andrew J. Kleinfeld
basis for opposition to motion for extension of writ of
attachment against client. United Services Funds V. Ward, 121
F.R.D. 673
District Judge; Alaska
222 W. 7th Avenue, Box 12; Anchorage, AK 99513; (907) 271-
Lawyers' Evaluation Courteous to lawyers and litigants.
5625
Not influenced by the identities of the parties or the lawyers.
Born 1945; appointed in 1986 by President Reagan
Has a current docket; accommodates emergency requests. Has
Education Wesleyan Univ., B.A., 1966, magna cum laude,
knowledge of current legal developments and a good
understanding of the issues in both complex and ordinary
Phi Beta Kappa; Harvard Law School, J.D. 1969, cum laude
cases. Rules on motions promptly and knowledgeably. Does
Private Practice Solo, 1971-1986
not tend to push too hard for settlement. Imposes long
sentences. During trial, dislikes a lawyer's making numerous
Government Positions Law Clerk, Justice Jay A.
objections and somewhat strictly controls a lawyer's
Rabinowitz, Alaska Supreme Court, 1969-71
questioning of and general behavior toward witnesses.
1990-1
Almanac of the Federal Judiciary
Volume 1
9th Circuit
1
©1990 Prentice Hall Law & Business
Specific Comments: "Slow to get his written opinions out."
pretrial preparation; evidentiary issues handled before the start
"Excellent grasp of the law." "Requires much paperwork."
of trial.
"Very courteous, broad-minded, intelligent; is doing his job
Specific Comments: "Very good judge. Slow to rule due to
well." "Tough, stern judge." "Severe in sentencing, but not
heavy caseload." "Will show temper if things are not done the
biased in opinions." "Has rules requiring attorneys to be
way he wants." "Generally excellent judge, but insists on
prepared well before trial." "Doesn't like time wasters."
running the court by his rules and terms." "High quality
"Highly regarded by the local bar."
bench. We're lucky to have such a conscientious judiciary."
James M. Fitzgerald
James A. von der Heydt
Senior Judge; Alaska
Senior Judge; Alaska
Federal Building; 701 C St.
Federal Building; 701 C St.
Anchorage, AK 99513; (907) 271-5553
Anchorage, AK 99513; (907) 271-5582
Born 1920; appointed in 1974 by President Ford
Born 1919; appointed in 1966 by President Johnson
Education Willamette Univ., B.A., 1950, LL.B., 1951
Education Albion College, B.A., 1942; Northwestern
Univ., J.D., 1951
Military Service
U.S. Army, 1940-41; U.S. Marine
Corps, 1942-46
Private Practice Nome, 1953-59
Government Positions Asst. U.S. Attorney, First and
Government Positions Deputy U.S. Marshal, Nome,
Third Districts of Alaska, 1952-56; City Attorney, Anchorage,
1945-48; U.S. Commissioner, Nome, 1951-; U.S. Attorney,
1956-59; Legal Counselor to the Governor of Alaska, 1959;
1951-53; House of Representatives, Territory of Alaska, 1957-
Commissioner of Public Safety, State of Alaska, 1959
59
Previous Judicial Positions Superior Court Judge,
Previous Judicial Positions
Presiding Judge, Superior
Alaska, 1959-72 (Presiding Judge, 1969-72); Associate Justice,
Court, State of Alaska, 1959-66
Supreme Court of Alaska, 1972-75
Professional Associations A.B.A.; American Judicature
Noteworthy Rulings 1980: Ruled that three national
Society; Federal Bar Assn.; Alaska Bar Assn. (Member, Board
monuments created in Alaska by President Carter under the
of Governors, 1955-59; President, 1959-60)
1906 Antiquities Act were legal and that Carter did not exceed
the limits of presidential authority in acting to preserve the
Pro Bono Activities President, Anchorage Fine Arts
lands. Anaconda Copper Co. had challenged Carter's
Museum
establishment of the Gates of Arctic, Yukon Flats, and
Admiralty Island national monuments, contending that their
Other Activities Wilson Ornithologists Society; Sigma
locations could make it impossible to mine several of the
Nu; Phi Delta Phi; Mason (32 degree Shriner)
company's existing claims in Alaska.
1984: Ruled that the Secretary of the Interior abused his
Noteworthy Rulings 1984: Issued a temporary
discretion when he entered into a land exchange with three
restraining order prohibiting an Arizona art dealer from selling
Alaskan Indian artifacts valued at more than $2 million.
Alaska Native corporations which would have allowed St.
Matthew Island in the Bering Sea to be used as an oil
Lawyers' Evaluation Courteous to lawyers and litigants.
transshipment base. Fitzgerald held that the Secretary, in
Not influenced by the identities of the parties or the lawyers.
deciding the land exchange was in the public interest, failed to
Tends to have a current docket; accommodates emergency
adequately consider the environmental consequences to St.
requests. Some say he does not have knowledge of current
Matthew.
legal developments nor a good understanding of the issues in
1985: Ruled that the government had authority to require
complex cases. Has a good understanding of the issues in
Marathon Oil Co. to compute natural gas royalties based on
ordinary cases. Rules on motions promptly but, some say, not
landed sales price of liquefied natural gas (LNG) sold in
knowledgeably. Tends to push too hard for settlement. Some
Japan. Marathon had contended that the LNG was a different
say he tends to rule for the defendant in civil rights cases and
product sold in a distant market and that royalties should be
tends to favor the government in criminal cases. Imposes
computed based on the contract price of other gas sold at the
average to heavy sentences. During trial, dislikes a lawyer's
wellhead.
making numerous objections and strictly controls a lawyer's
Lawyers' Evaluation Usually courteous to lawyers and
questioning of and general behavior toward witnesses.
litigants. Not influenced by the identities of the parties or the
Specific Comments: "Solid. Pragmatic. Fairly good on the
lawyers. Tends to have a current docket; accommodates
law". "This judge is particularly anti-labor unions." "Not the
emergency requests. Has knowledge of current legal
most diligent or scholarly, but has a high level of common
developments and a good understanding of the issues in both
sense." "Hates to have cases go to trial. Will force
complex and ordinary cases. Tends to award average to low
settlements." "Doesn't like to schedule trials; won't give trial
dates far in advance."
attorney's fees. Rules on motions knowledgeably but not
promptly. Does not tend to push too hard for settlement.
Tends to favor the government in criminal cases. Imposes
average sentences. During trial, somewhat dislikes a lawyer's
making numerous objections and strictly controls a lawyer's
questioning of and general behavior toward witnesses. Has
special procedures regarding documents: Requires vigorous
2
9th Circuit
Almanac of the Federal Judiciary
Volume 1
1990-1
©1990 Prentice Hall Law & Business
Lee - as you
Car see, CBG
asked me to Check
with you on this.
May C.
CA 9
UNITED STATES SENATE
WASHINGTON, D. C. 20510
CONRAD BURNS
MONTANA
January 14, 1991
Mr. Boyden Gray
JAN
Counsel to the President
The White House
Washington, DC 20500
Dear Boyden:
I'm enclosing a copy of a letter I have
But
written to President Bush asking that my Chief of
Staff, Jack Ramirez, be appointed to the Ninth
Circuit Court of Appeals.
Check
I want to ask a personal favor of you.
Please read the letter and call me. I'd like to
know what I need to do to make this appointment
happen. I've also written to Chase Untermeyer and
Richard Thornburgh, but I need your help.
Lee
Thanks.
L.
Sincerely,
Conrad Burns
Bayden- -
Want me to put this
on you Call sheet 1.
No
yes
-
COMMITTEES:
CONRAD BURNS
COMMERCE, SCIENCE, AND
MONTANA
TRANSPORTATION
ENERGY AND NATURAL RESOURCES
Hnited States Senate
SMALL BUSINESS
WASHINGTON, DC 20510-2603
January 17, 1991
The Honorable George Bush
The White House
Washington, DC 20500
Dear Mr. President:
I recently learned that a vacancy will occur on the
Ninth Circuit Court of Appeals around February 1, 1991.
My Chief of Staff, Mr. Jack Ramirez, has applied for
the appointment to the Ninth Circuit. I believe it would
be an excellent decision for you, for the judicial system,
for this country, and for my state of Montana.
Jack Ramirez, at age 51, has a long and distinguished
political and legal career. He was a senior partner in
Montana's largest law firm before taking a leave of
absence, at my request, to serve as my chief of staff. He
is a noted trial lawyer in Montana and has been honored by
designation as a Fellow of the American College of Trial
Lawyers and an Advocate in the American Board of Trial
Advocacy. He has the highest rating from Martindale-Hubbel
and is listed in America's Best Lawyers.
Jack has also paid his dues as a Republican many
times over. He served over twelve years in the Montana
Legislature. In 1979, he was elected Minority Leader in
the House in only his second term-something that was
unprecedented then and has not occurred since. After his
second term, he gave up his seat in the legislature to run
for Governor of Montana. He won the Republican nomination
in a three-way primary, but lost the general election. He
was later re-elected to the legislature and was immediately
selected again by his peers to serve in the leadership. He
was Minority Leader of the House in his last term when he
decided not to run again for the legislature.
Jack was one of your early supporters, serving as
early as 1986 on the committee promoting your candidacy in
Montana. He is conservative in his philosophy, but he is
also very practical politically. He has been an advisor in
numerous Republican campaigns in Montana, including my
successful campaign against former Senator John Melcher.
I obviously do not want to lose Jack as my Chief of
Staff, but he has too much to offer this country and
deserves more personally.
The Honorable George Bush
January 17, 1991
Page 2
Montana has not fared well on the court. The Ninth
Circuit has traditionally selected one judge from each of
the smaller states. Montana's "representative" has been
Judge James R. Browning, a Kennedy appointee. Judge
Browning received his law degree from the University of
Montana Law School in 1941, but left the state immediately
after graduation and never lived or worked as an adult in
Montana. He came to Washington after Law school, worked
for the Justice Department and then a Washington law firm,
and was appointed to the circuit court in 1961 by President
Kennedy. Browning, who is 71 years of age, recently went
on a reduced caseload. All other states in the Ninth
Circuit have fully active representatives. It is clearly
Montana's turn for an appointment to the Ninth Circuit,
particularly when we have such an outstanding candidate.
I do not know of a man in Montana who has more
support from the legal, business, government and political
communities. I sincerely ask for your favorable action.
Sincerely,
Conrad Burns
United States Senator
CRB/pad
CC:
Mr. Fred McClure
Mr. Boyden Gray
The Honorable Richard Thornburgh
Mr. Chase Untermeyer
ID #
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WHITE HOUSE
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Subject: letter from Dave Frohnmayer - interest in 9th CHICU,T vacancy
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FOR OUTGOING CORRESPONDENCE:
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5/81
THE WHITE HOUSE
1-18-91
Dear Dave-
Thank you Por your letter, interest and
understanding.
I will mahe sure the appropriate
people here are aware of your" very strong
interest." I will also make sure they know
of my enthusiastic endorsement.
Keep in touch. - I will!
Sincerely, Andy Card
THE WHITE HOUSE
WASHINGTON
Honorable Dave Frohnmayer
Attorney General of Oregon
2875 Baker Boulevard
Eugene, Oregon 97403
AC HAS SEEN
DAVE FROHNMAYER
Attorney General of Oregon
2875 Baker Blvd.
Eugene, Oregon 97403
January 15,1991
Dear Andy:
Iknow your mind is on many things
these days. honetheless, I deeply appreciate
your willingness to consider my very strong
intered in the 9th Circuit Vacancy.
vita. as you Dr requested is weighted Dendise exclusively an to updated
professional considerations. of I should
recast it, or if you wish other information,
please let me know. ( Dhave Packwood provided
this were kind enough jointly to recommend
vita to Senators Hatfuld and
who my name to the attorney General
all best wishes, andy I hope you
Can help. In The meantime, our
thoughts are with you, your colleagues
and the President as you confront
momentous decisions.
Warmest regards,
Mare
DAVE FROHNMAYER
Attorney General of Oregon
Residence
100 Justice Building
2875 Baker Boulevard
Salem, Oregon 97310
Eugene, Oregon 97403
(503) 378-6002
(503) 686-0434
I. PROFESSIONAL BACKGROUND
Attorney General of Oregon (Elected: 1981-85; 1985-89;
1989-93)
-
Chairman, Western Conference of Attorneys General,
1986-87
-
President, National Association of Attorneys
General, 1987-88
-
Wyman Award, 1987 (awarded each year to the single
Attorney General who best exemplifies the goals of
the office)
Professor of Law (1971-80) and
Special Assistant to the University President (1971-79)
University of Oregon (Eugene, Oregon)
-
Taught Constitutional law, Legislation, Torts,
Legislative & Administrative Processes, Legal
Issues in Health Care, Legal Issues in Education
-
Legal counsel to President of University
State Representative
Oregon Legislative Assembly, three terms (1975-80)
-
Served on Judiciary, Human Services, Education and
other committees and task forces
-
Voted highest in ranking of all 90 legislators in
1979 session for "integrity and courage"
(Oregonian, August 1979)
Consultant
Civil Rights Division, U.S. Department of Justice
(1973-74)
DAVE FROHNMAYER
Page 2
Assistant to the U.S. Secretary of Health, Education and
Welfare (1969-70)
-
Writer and policy assistant for Secretaries Robert
Finch and Elliott Richardson
-
Top secret security clearance
-
Helped develop health policy strategy for White
House white paper
Associate, Pillsbury, Madison & Sutro
San Francisco, California (1967-69)
-
Banking, commercial law, antitrust
-
Pro bono indigent representation pursuant to
appointment as counsel by Federal District Court
II. EDUCATION
Public Schools; Medford, Oregon
Harvard College, 1962, A.B.
-
Magna Cum Laude in Government
-
Thesis: "The Concept of the Elite and Liberal
Democratic Thought"
-
Phi Beta Kappa and the Detur Prize
-
Publication: "The Concept of Totalitarianism and
Present Day Soviet Russia," Adams House Journal
of the Social Sciences
Oxford University, 1964, B.A. in Philosophy, Politics
and Economics
-
Rhodes Scholar
-
President of Wadham College Debating Society
-
Writer for The Oxford Tory
University of California, School of Law (Boalt Hall),
Berkeley, California, 1967, J.D.
-
Member, Board of Editors, California Law Review
Research and Chief Note and Comment Editor)
-
Order of the Coif
-
Elected Graduation Class Speaker
Oxford University, 1971, M.A. in Philosophy, Politics
and Economics
DAVE FROHNMAYER
Page 3
III. PROFESSIONAL STANDING
A.
Ratings
Martindale-Hubble rating (1990) of "a.v." (highest
rating possible by this authoritative private
reference service for American lawyers).
Listed in: Who's Who in America; Who's Who in
American Law; Who's Who in the West.
B. Bar Memberships and Admissions
United States Supreme Court
United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Tenth Circuit
Oregon Supreme Court
Oregon Court of Appeals
Member, Oregon State Bar
Member, California State Bar (inactive)
IV. HONORARY DEGREES AND AWARDS
Outstanding Senior Man at Medford High School, Medford,
Oregon
Detur Prize, Harvard
Phi Beta Kappa, Harvard
Rhodes Scholar, Oxford
Order of the Coif, University of California at Berkeley
Outstanding Educator of America, 1974
Eugene Junior First Citizen for Distinguished Community
Service, 1974
Selected one of Five Outstanding Young Men of Oregon,
1975
Selected one of 50 legislators from 25 states to attend
Eagleton Institute Conference on State Legislative
Reform, 1975
Roger W. Williams Freedom of Information Award, Oregon
Newspaper Publishers Association, 1981
Pioneer Award, University of Oregon, 1985
Wyman Award for Outstanding Service, National
Association of Attorneys General, 1987
Parents of the Year Award (with spouse), Oregon
Division of the American Association for Marriage
and Family Therapy (1988)
DAVE FROHNMAYER
Page 4
Honorary Doctorate of Laws, Willamette University, 1988
Honorary Doctorate of Public Service, University of
Portland, 1989
Oregon Chapter of Leukemia Society of America Service to
Mankind Award, 1990
V. SUPREME COURT ADVOCACY
Personally argued and won six of seven cases before the
United States Supreme Court -- the most cases and best
record of any current state Attorney General.
1. Oregon V Kennedy, 456 US 667 (1982) (double
jeopardy does not bar retrial of accused after
prosecutor's prejudicial comment) (state prevailed)
2. Oregon V Bradshaw, 462 US 1039 (1983) (Miranda rule
not expanded to exclude accused defendant's
voluntary admissions initiated after proper police
warnings) (state prevailed)
3. Tower V Glover, 467 US 914 (1984) (public defender
not entitled to absolute immunity in case alleging
massive and improbable conspiracy with prosecutors
and judges) (state did not prevail)
4. Oregon V Elstad, 470 US 298 (1985) (Miranda rule
not extended to exclude statements of defendant who
was readvised of right to counsel after initial law
enforcement error) (state prevailed)
5. Oregon Department of Fish & Wildlife V Klamath
Indian Tribe, 473 US 753 (1985) (scope of treaty
interpretation concerning state regulation of
hunting and fishing rights on former reservation
land) (state prevailed)
6. Whitley V Albers, 475 US 312 (1986) (inmates
injured in suppression of prison riot not entitled
to recover damages under $1983 for alleged
violation of Eighth Amendment "cruel and unusual
punishments" clause) (state prevailed)
DAVE FROHNMAYER
Page 5
7. Employment Div. , Department of Human Resources of
Oregon V. Smith, 110 S Ct 1595 (1990) (state can
deny unemployment compensation for work-related
misconduct based on use of drug, notwithstanding
free exercise of religion claim for peyote use)
(state prevailed) (see attached analysis of oral
argument)
VI. SIGNIFICANT PROFESSIONAL RESPONSIBILITIES
A.
Exercised national leadership in major litigation
of historic significance:
1. Oil Overcharge Litigation
(a) United States V Exxon. Co-chaired state
Attorneys General task force and
negotiating team since 1982. Selected by
peers to present oral argument on appeal
for 54 states, territories and
possessions. Prevailed on oral argument,
resulting in distribution of $2.1 billion
in indirect restitution to consumers
through states. This was the
then-largest final civil judgment in the
history of American law. See United
States V Exxon, 773 F2d 1240 (Temporary
Emergency Court of Appeals, 1985) cert
denied 196 S Ct 892 (1986)
(b) In re Stripper Well Litigation. Co-chair
of states' negotiating team. This
extended proceeding culminated in the
then-largest civil settlement in the
history of American law (between $4-6
billion). (administrative litigation
continues)
I helped lead and participated in lengthy
negotiations with states, the federal
government, private parties,
representatives of the petroleum industry
and the general public. I presented the
DAVE FROHNMAYER
Page 6
single oral argument on behalf of all
states, territories and possessions in
favor of the settlement. (See 653 F Supp
108 (Dist Kan, 1986)) This judgment
continues to benefit consumers of all
American jurisdictions. (Note attached
letter concerning my participation from
chief U.S. Government negotiator for the
Department of Energy, Avrom Landesman.)
B.
Supervised one of the largest law offices in
Pacific Northwest for 10-year period -- practice
involves defense against all criminal appeals
(including capital cases), state civil litigation,
consumer protection, organized crime prevention,
child support enforcement, and legal advice and
services to all Oregon state agencies and
departments.
C.
Supervised state civil litigation and participated
in joint federal and state investigation and
prosecution of criminal acts perpetrated by
leadership of Rajneesh commune in central Oregon.
(1983-86) (Largest criminal conspiracy in history
of Oregon.)
D.
Co-authored and supervised publication of
significant manuals on administrative proceedings
and open government legislation. Organized and
keynoted major conferences on public law topics for
citizens, government officials and attorneys.
(1981-91)
E.
Editorial committee member and contributing author,
The Office of Attorney General: Powers and Duties,
(National Association of Attorneys General 1988))
Author and co-author of chapters entitled
"Structure of State Legal Services" and "State
Administrative Law."
DAVE FROHNMAYER
Page 7
VII. PRIZES
Each of the important professional competitions noted
below was open nationally to all members of the American
Bar Association. Each submission was judged anonymously
by a panel of experts.
A.
First Prize, American Bar Foundation Samuel Poole
Weaver Constitutional Law Essay Competition
($5,000), 1972. Subject: "The Separation of
Powers: An Essay on the Vitality of a
Constitutional Idea." Published 52 Oregon Law
Review 211 (1973).
B.
First Prize, American Bar Foundation Samuel Poole
Weaver Constitutional Law Essay Competition
($5,000), 1974, "An Essay on Executive Privilege." "
(First double winner in history of this
competition.)
C.
One of three first prizes, National Legal Center
for the Public Interest ($1,000), 1979. Subject:
"Official Responsibility: An Essay in Advocacy."
Published Oregon State Bar Bulletin Forum, Vol. 2,
No. 1 (Jan. 1980).
D.
First Prize, American Bar Association Ross Essay
Competition ($5,000), 1980. Subject: "Regulatory
Reform: A Slogan in Search of Substance."
Published 66 ABA Journal p. 871 (July 1980).
VIII. CRIMINAL LAW
-
Executive Committee, Oregon District Attorneys
Association (1981-present)
-
Chair, Governor's Special Commission Against
Violent Crime (1982-86)
-
Chair, Governor's Commission Against Organized
Crime (1981-present) (now merged to function also
as U.S. Attorney's Law Enforcement Coordinating
Committee)
DAVE FROHNMAYER
Page 8
-
Author of Oregon RICO Act (see Frohnmayer, Arnold &
Hamilton, "RICO: Oregon's Message to Organized
Crime,' 18 Willamette Law Review 1 (1982) )
-
Endorsed for Governor by all 36 District Attorneys
and all 36 Sheriffs in Oregon (1990)
IX. SCHOLARSHIP AND PUBLICATIONS: SELECT BIBLIOGRAPHY
The following publications develop the author's
perspectives on the following major themes: 1) the need
for judicial self-restraint; 2) the importance of
controls over abuses of administrative agency powers; 3)
the role of elected officials in a separation of powers
government; and 4) new mechanisms to assert the
continuing importance of federalism in the American
political structure:
A.
Administrative Law
1. Frohnmayer, "The Oregon Administrative
Procedure Act: An Essay on State
Administrative Rulemaking Procedure Reform,"
58 Oregon Law Review 411 (1980) (explaining
complex statute and comparing state and
federal administrative law developments).
2. Frohnmayer, "Regulatory Reform: A Slogan in
Search of Substance,' 66 ABA Journal 871
(1980) (Ross Essay Prize) (analyzes sources of
regulatory power by federal agencies and
proposes legislative and administrative
reforms to curb excesses of authority).
3. Frohnmayer, "National Trends in Court Review
of Agency Action: Some Reflections on the
Model State Administrative Procedure Act and
the New Utah Administrative Procedure Act,"
3 BYU Journal of Public Law 1 (1989)
(comparing federal and state trends in
administrative law and proposing controls on
abuse of agency authority).
DAVE FROHNMAYER
Page 9
B.
Legislative Processes
1. Linde & Frohnmayer, "Prescription for the
Citizen Legislature: Cutting the Gordian
Knot,' 56 Oregon Law Review 3 (1977)
(diagnosing the failures of the state
legislative process and proposing fundamental
reform to preserve the citizen legislature).
2. Frohnmayer, "The Legislative Function,"
67 Oregon Law Review 41 (1988) (discussion of
modern developments in state legislative
procedures -- overtly opposing the creation by
judiciary of monetary entitlements through
expansive interpretation of state
constitutional provisions).
C.
Federalism
1. Frohnmayer, "A New Look at Federalism: The
Theory and Implications of Dual Sovereignty,"
12 Environmental Law 903 (1982) (this article
examines the practical and theoretical
justifications for continued vitality of the
federalist principle of state authority).
2. Frohnmayer, "The Compact Clause, The
Appointments Clause and the New Cooperative
Federalism: The Accommodation of
Constitutional Values in the Northwest Power
Act," 17 Environmental Law 767 (1987) (this
article examines creative possibilities of
cooperative interstate agreements under the
Compact Clause of the United States
Constitution).
The author participated in writing the amicus
curiae brief and presented oral argument on
behalf of the northwest states and the
National Governors Association in the
principal case, Seattle Master Builders Ass'n
V Pacific Northwest Elec. Power and
Conservation Planning Council, 786 F2d 1359
(9th Cir 1986), cert denied, 479 US 1059
(1987)
DAVE FROHNMAYER
Page 10
D. Judicial Process and Judicial Review
1. Frohnmayer, "Legislatures and the Courts:
Guarding the Guardians,' 59 State Government 7
(1986) (critical of activist courts and noting
limitations of courts as advocates of new
social policies).
2. Frohnmayer, "Of Legislative Intent, the Perils
of Legislative Abdication, and the Growth of
Administrative and Judicial Power, 22
Willamette Law Review 219 (1986) (argument for
clear legislative standards to control
otherwise questionable activism by courts and
administrative agencies).
3. Frohnmayer, "The Courts as Referee," in
Frohnmayer & Baum, eds. The Courts: Sharing
and Separating Powers at p. 51 (Eagleton
Institute of Politics: 1989) (symposium
presentation noting abdication of authority by
elected officials to courts, and urging
reassertion of legislative and executive's
institutional power).
4. Frohnmayer, "The Separation of Powers: An
Essay on the Vitality of a Constitutional
Idea," (Weaver Essay Prize, supra) (urges
vigorous assertion of powers by legislative
and executive branches without requirements of
exhaustive judicial review).
5. Frohnmayer, "Effective Written Argument,' in
Oregon State Bar Continuing Legal Education,
Appellate Practice chapter 2 (1987)
(discussing effective techniques for briefing
federal and state appeals).
X. NATIONAL AND COMMUNITY SERVICE
Member, Board of Directors, National Marrow Donor Program
Member, Board of Directors, Lane County Chapter,
American Red Cross
Member, Board of Directors, Oregon Chapter, The Nature
Conservancy
DAVE FROHNMAYER
Page 11
Founder and Coordinator, Fanconi's Anemia Support Group
Campaign Steward, Oregon Committee for the Humanities
Honorary Chairman, Children's Miracle Network Telethon
for Sacred Heart Hospital (Eugene) and Doernbecher
Children's Hospital (Portland)
Member, Board of Content Advisors, The Constitution
Project (public television and educational film series
on the United States Constitution)
Advisory Board Member, Oregon Federation of Parents for
a Drug Free Youth
Board Member, Citizens for a Drug Free Oregon
Member, Honorary Support Group of Oregon Generations
Together
Honorary Chairperson, 1989 and 1990 Oregon Special
Olympics Law Enforcement Torch Run
Member, Doernbecher Children's Hospital Foundation
Advisory Board
XI. PERSONAL
-
Born Medford, Oregon; July 9, 1940
(SSN 542-44-8898)
-
Married to Lynn Diane Frohnmayer, National
Consultant on Child Abuse and Permanent Planning
for Foster Care Children
-
Children:
Daughter, Kirsten, born 2-10-73
Son, Mark, born 7-19-74
Daughter, Kathryn, born 11-18-78
Son, Jonathan, born 12-7-84
Daughter, Amy, born 2-25-87
-
Health: Excellent
-
Hobbies: Skiing, white-water rafting, cycling,
gardening, music
confronted with the hidden, abused
outset. is, "Does the free exercise
was not a theoretical problem, since
understandable. emotionally driven
child, he told Burns, could not rely on
clause (of the First Amendment re.
the Oregon courts now had before
effort to shift the hearing away from
a neglect or abuse statute. Added
quire every state to exempt religious
them a plea for exemption from Ore-
the antidrug atmosphere Frohn-
Scalia surcustically: "Tough luck,
peyote use by the Native American
gon's drug laws for religious users of
mayer had left.
kid. You're going to have to die,
Church. or perhaps even beyond
marijuana.
Justice Scalia. for onc. was not di.
huh?"
that, other substance use by other re.
Helping Frohnmayer's argument
verted. "Do you disagree with what
Still not getting the answers he
ligions, from the reach of generally
along further. Justice Scalia sug-
the attorney general said. that the
wanted. Scalia scolded Burns: "You
applicable criminal laws?"
gested that it was not just a problem
whole purpose of the ingestion of
have to fall back on the position that
Frohnmayer began with a some-
of marijuana, but of "any other hallu-
peyote is its hallucinogenic effect?"
if there is no other way to prevent the
what charitable bow to the sincerity
cinogenic drug, I would assume."
Dorsay said he did not: however, he
social harm-even if it's as severe as
of Native American Church mem-
Said the attorney general somewhal
did disagree "that that ingestion is
the death of an individual-no other
bers' fear that their religion would be
demurely: "Justice Scalia, that is one
harmful."
way to prevent that other than to pun-
threatened if peyote use were out-
of the major reasons we have brought
He then launched into an argument
ish the person who doesn't give you
lawed. He thon used a question by
this case to this Court for a second
that the Native American Church's
the information, that's too bad; you
Justice Scalia to emphasize that the
time. The case. he added, "is in fact
history showed no evidence of mis-
must let the harm occur.
case would extend to other claims of
the thin edge of the wedge in which
use of peyote-clearly an attempt to
Dryly. Burns said that situation did
religious drug use.
analytical distinctions are extremely
refocus the Court's attention on the
not exist "in the real world. in Mary.
Perhaps the most compelling as-
difficult to draw."
possible virtue of a single, narrow ex-
land. But instead of talking about
pect of the attorney general's "slip-
The attorney general then maneu-
emption for that church's practice.
immunity as a way of getting informa-
pery slope" argument was the point
vered well around a line of question-
Dorsay was unable to go very far
tion from the mother, Burns contin-
he made more subtly. Playing upon
ing Justice Stevens initiated. If a state
with that, however, because he soon
ued to focus on the neglect statute
the Court's worries about the scourge
could flatly ban the use of drugs in
got bogged down in # series of ques-
alternative.
of drug abuse. Frohnmayer stressed
religious ceremonies, Stevens asked.
nons over the unemployment com-
Later, Burns missed repeated op-
heavily the "dangerous and power-
what about sacramental wine?
pensation issue.
portunities to show compassion for
ful" nature of pcyote as a hallucino-
Frohnmayer first-said that that was
Taking un the constitutional argu-
Maurice's plight without abandoning
genic drug, He then linked that with
not a controlled substance. adding
ment, the Native Americans' lawyer
his own client. For example. Justice
the prospect that "other religions us-
that an argument for "religious ac-
then tried to meet Frohnmayer's drug
Kennedy told Burns al one point,
ing other drugs" would be next in line
commodation" would be different for
abuse arguments directly. "We do
"There is the very real possibil-
for h religious exemption.
wine.
not have any evidence in this case
ity that while we sit here this morn-
It was obvious that Frohnmayer
Seeing A way to strengthen his ar-
that pcyote has been abused or that it
ing. that child is in need of care.
was attempting to convince the jus-
gument against peyote, the attorney
contributes to the drug abuse prob-
Barely conceding the point. Burns
tices that Smith was drawing the
general renewed his emphasis on the
lem." he asserted.
commented blandly. "To be frank.
Court toward legitimizing illicit use
very dangerous' character of a hal-
But that did not work particularly
your judgment [about that] is as good
of is wide variety of destructive sub-
lucinogenic drug.
well for Dorsay, either. Justice Sca-
as mine.
stances, worsening the nation's over-
Frohnmayer still had one more
lia, while conceding that there might
And when Kennedy pressed Burns
all drug problem.
"slippery slope" plea to make for his
be no risk of peyote's use spreading
to say whether his client's Fifth
beyond that one church. neverthe-
Amendment right "overrides any in-
less wondered why states could not
terest we have in the welfare of that
ban even that use, on the simple
child," he found no way to soften an
If peyote lawfully could be used in a
premise that the drug was "danger-
affirmative answer. Finally, Ken-
ous."
nody remarked. "And $0 you're say-
religious ritual, "how about marijuana use
When Dorsay replied that an offi-
ing that there is nothing that can be
cial belief that a religious practice
done for the welfare of the child.' At
by a church?" Justice O'Connor
might be harmful was not enough 10
that point. Burns's argument seemed
ban it. Scalia interrupted, "Excuse
beyond rescue.
wondered.
me, what do you mean? You
would not accept scientific evidence
DRUGS AND RELIGIOUS FREE-
that the use of peyote is physically
DOM: David Frohnmayer's argu-
harmful?" Dorsay said he would not
ment in Employment Division of Ore-
accept that, It was obvious. how.
80n V. Smith was a reminder of an old
Justice Kennedy saw the connec-
side. He claimed that religious prac-
ever, that he was simply inviting the
adage: A "slippery stope" argument
tion immediately, wondering if there
tices "can and do change. Thus. he
Court into an unproductive inquiry:
is one of the easiest to make 10 the
was any evidence of "the danger that
said, the Court should be wary of fix-
how to decide which scientific evi-
Court, but it is also one of the hardest
peyote is diverted from religious use
Ing a practice as constitutionally pro-
dence to accept.
to make well. Frohnmayer did so well
and, say. sold on the street in the nor-
tected so that there would be no stop.
A bit later Justice White, picking
with it that his opponent. Craig Dor.
mal drug distribution channels.' The
ping it if, in the future, it became an
up on the main "slippery slope'
say, seemed caught in the downhill
state's lawyer said that it was so
undeniably unsafe practice.
theme of the attorney general.
slide.
available, "although not in great
The attorney general's perfor-
pressed Dorsay about possible
The Smith case is before the Court
amounts." The unstated, but clear.
mance confronted his adversary with
claims for religious exemptions for
11 second time. It involves two mem-
implication was that the flow might
an uphill struggle. Dorsay. the direc-
other drugs. The lawyer argued that a
bers of the Native American Church
increase after the Smith case.
tor of the Oregon Legal Services Na-
ruling his way would probably extend
who were fired from their county jobs
When Prohnmayer was left alone
tive American program in Portland,
to other churches that make peyote
as drug abuse counselors because
to pursue his own line of argument.
sensibly took on first the issue that
use a ritual, but, he added. peyote
they ingested peyote buttons as
he ticked off the governmental inter-
Justice Stevens's questions about
would be "unique."
part of a sacred Indian religious rit-
ests in banning peyote and other
sacramental wine had raised. He
Justice O'Connor, however, was
ual. They were denied unemploy-
drugs from authorized religious use.
slyly suggested that Frohnmayer had
not willing to let him stop there:
ment compensation-a denial they
He warned of "a patchwork of ex.
made what was. in essence. an ethni-
"How about marijuana use by a
claimed violated their religious free-
emptions of other drugs on & drug-hy-
cally biased argument.
church that uses that as part of its
dom.
drug, religion-by-religion, believer-
"If Indian people were in charge of
religious sacrament?" Dorsay an-
In 1988 the Court ruled that if pay.
by-believer basis."
the United States right now, or in
swered, weakly. "Well, see, I think
ore use was a crime in Oregon, the
In another variation of the "slip-
charge of the government,' said Dor-
we can get into a lot of examples. and
state need not pay unemployment.
pery slope" argument, the attorney
say, and you look at the devastating
Idon't want to go down that road 100
but the Court did not address
general voiced his worry that if the
impact that alcohol has had on Indian
(ar. Tellingly, O'Connor inter-
whether the Constitution protected
Court allowed only the use of peyote
people and Indian tribes through the
rupted. "I'll bet you don't!" The
the use of such a drug for religious
and only by the Native American
history of the United States, you
courtroom burst into laughter-con-
purposes. Oregon's Supreme Court
Church, then the problem of religious
might find that alcohol was the
firming how well the Frohnmayer III.
later ruled that it is unconstitutional
favoritism would arise, forcing state
Schedule One substance and peyote
gument had gone over with the
to prosecute Native American
legislatures into the midst of potential
was not listed at all. And we are get-
crowd.
Church members who use the drug in
Establishment Clause problems.
ting here to the heart of an ethnocen-
Indeed. the remainder of the argu-
good faith for religious purposes.
And. he told Justice Kennedy. the
tric view, I think. of what constitutes
ment was largely devoted to ques-
Therefore. the state court concluded.
only way out of those problems
religion in the United States. And I
tions that the attorney general's
the state could not deny unemploy-
would be to "treat other religions
think that needs to be looked at very
argument had stirred among the jus-
ment to the fired church members
clamoring for equal treatment on sim-
hard before determining what is a
tices-including a question (perhaps
Frohnmayer, Oregon's attorney
liar grounds in similar ways.
dangerous substance and what is
not entirely serious) from Scalia
general. brought the case back to the
Sympathetically. Justice White
not.
wondering about a religious exemp-
Court on the constitutional issue. He
told him a moment later. "You just
The comment. of course. would
tion for human sacrifice. when "only
lost no time suggesting that 0 ruling in
don't want to have to face up to those
have been more to the point if the is.
the Aztecs" would be accommo-
favor of Native Americans' use of
problems. You want not to have any
sue in the case were whether a state
dated.
peyote could not be held to that situa-
exemption at all." Said Frohnmayer:
could ban peyote as a general propo-
There were no points of strong re-
non alone. The issue. he said at the
"That 15 correct." He added that It
sition. Even so, it was & somewhat
covery by Dorsay.
THE AMERICAN LAWYER
JANUARY/FEBRUARY 1990
85
LYLE DENNISON
"July 17, 1986
"Dear Dave,
"As we await the final signal from the District
Court in Wichita to implement the Settlement
Agreement, I wanted to take this opportunity of
letting you know how honored I feel to have worked
with you on this exciting project. It is heart
warming to realize that a man with such outstanding
talent and personal integrity is a leader in the
public sector on behalf of the States. Your good
common sense and healthy insights were instrumental
in making possible what will be regarded as a major
breakthrough in the field of restitution and in the
peaceful resolution of complex litigation. I very
much appreciate the leadership you gave on many
occasions and the wonderful spirit of compromise you
spread throughout the settlement community. I hope
there will [be] future occasions in which our paths
will cross, particularly in peaceful settlements.
With best regards,
Avrom"
[Reproduction of actual handwritten letter (see
reverse side) from Avrom Landesman, former Deputy
Special Counsel and Director of Enforcement Programs
for the Economic Regulatory Administration, U.S.
Department of Energy, to Attorney General Dave
Frohnmayer]
THE WHITE HOUSE
washington
Andy,
As we discussed at the last Judicial
Selection meeting, do you want to
run this by the Governor and then
take it in to the President?
Lee
21 June 1990
THE WHITE HOUSE
WASHINGTON
June 21, 1990
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAYCMN
COUNSEL TO THE PRESIDENT
SUBJECT:
Thomas Nelson, Candidate for the U.S. Court of
Appeals for the Ninth Circuit
Thomas Nelson is a candidate for a vacancy on the U.S. Court of
Appeals for the Ninth Circuit. That circuit includes Washington,
Oregon, California, Arizona, New Mexico, Idaho, and Montana. The
judge who left the bench, creating the vacancy, was from Idaho.
Although Nelson is not as good a candidate as most of those we
are recommending to you for the courts of appeals, we have not.
found a better candidate from Idaho, Nelson is acceptable and he
is strongly supported by Senator McClure.
The ABA gave Nelson a "Well qualified/qualified" rating, their
second highest. However, one issue developed in the course of
the FBI check of which we thought you should be aware. Nelson
told the Bureau that he had taken puffs on marijuana cigarettes
on two occasions, ten and eleven years ago, when Nelson was 42/
43 years old. On both occasions, Nelson was attending a party
held by somebody else where the cigarettes were passed around.
Senator Biden's and Thurmond's staff have both indicated that
they are personally uncomfortable with signing off on this
because Nelson was a grown man who should have known better.
Senator McClure has talked to both Senators, though, and he says
that they have both agreed not to make an issue of this matter.
Biden added the caveat that he could only speak for himself, not
the other Democrats. Senator McClure would like us to proceed
with the nomination anyway and has committed to do everything in
his power to cause it to be approved.
Nelson does not appear to have any other real confirmation
vulnerabilities. The advantage of going forward is that in light
of the strong support for this candidate from a conservative
Republican Senator, we are likely to establish a ten year statute
of limitations for this level of drug use, thus strengthening the
rule we established in the case of Tim Ryan. On the other side,
there is a small risk of embarrassment, particularly given the
Judiciary Committee's general tendency to seize on objections to
nominees and what happened with Doug Ginsburg's nomination to the
Supreme Court. Accordingly, we thought you ought to have an
opportunity to register a negative.
From the Desk of
LAURA NELSON
12-27-90
Dear Lee,
1 thought you'd like
to see this article on
Judge Goodwin.
Please let me know
IF, or when, some letters
from people who know
Larry Siskind would be
helpful in your consider-
ation of him for the
Ninth Circuit.
Fondly,
Laura
00000 0040000000
CA 94306
PALO ALTO
he
660 HANSEN WAY
BAKER 8 MCKENZIE
LIBRARY
073091
RDER
251
$1
SERVING THE ENTIRE BAY AREA
THURSDAY, DECEMBER 27, 1990
"oday's
FORNIA
AG Says No
OPINION
IVICE
On Lungren's
TIONAL LAW
TATE OF HAWAII:
Pick for Deputy
officials not subject
principles in the
id segregation of
But Lungren Aide Says
t lands. 9TH CIR.
Stirling Will Get Post
SENTENCING
DODSON: Defendant
for time spent in
ALFRED
BY BILL AINSWORTH
RECORDER STAFF WRITER
y for presentence
GOODWIN:
"Christmas is a
SACRAMENTO - Dan Lungren's
3D
funny thing. It
first action as attorney general-elect -
DISCRIMINATION
makes you real-
appointing a conservative Sacramento
IMUNITY COLLEGE
ize that there
County judge as his chief deputy vio-
HC: Fair Employ-
are more im-
lates the state constitution, the current at-
g Commission may
portant things
torney general concluded Wednesday.
insatory damages in
in life than just
In a 24-page letter Attorney General
ssment cases.
work, work,
John Van de Kamp said Lungren's ap-
work."
pointment of M. David Stirling as chief
deputy violates Article VI. Section 17,
ER: Fair Employ-
which bars judges from accepting other
g Act not exclusive
public offices.
I harassment claim
And although it was Lungren who
CAL.SUP.CT.
asked Van de Kamp's office to draft the
RY
opinion, he will now ignore it.
"The attorney general-elect is con-
ACKA: Verdict not
vinced that the appointment is a constitu-
ick on jury's sub-
tional one and that David Stirling is qual-
cesses. C.A. 4TH
THE RECORDER FILE (1989)
ified for the position based on our inter-
OPERTY
pretation," said Dave Puglia, Lungren's
BERT: No recrea-
Goodwin Plans to Take
press secretary.
Van de Kamp's conclusion does not
cy after dissolu-
have the force of law. It would take a
ids relationship.
Senior Status on Jan. 31
successful suit to void Lungren's ap-
pointment of Stirling, said Richard Mart-
D SEIZURE
land, a chief assistant attorney general
OCK: Warrantless
who was one of the opinion's authors.
incoming calls
Wallace Will Take Over as Circuit's Chief Judge
Still, Van de Kamp's letter casts a
shadow over a transition that has been
nt circumstances.
the October 1989 Loma Prieta earth-
delayed by the tight race between Re-
BY PETER ARONSON
RECORDER STAFF WRITER
quake, which severely damaged the old
publican Lungren and Democrat Arlo
ECURITY
headquarters at Seventh and Mission
Smith. Smith, the San Francisco district
DEPARTMENT OF
Saying it's time to work less and enjoy
streets.
attorney, still has a suit before the state
JMAN SERVICES:
life more, Alfred Goodwin announced
He also was the court's point man in
Supreme Court seeking to throw out the
received under
Wednesday he will step down as chief
fighting a congressional bill earlier this
1.2 million absentee ballots that provided
community prop-
judge of the Ninth Circuit U.S. Court of
year that proposed splitting the Ninth
Lungren's winning margin.
Appeals on Jan. 31.
e" for SSI pur-
Circuit in two.
Stirling, appointed a Sacramento
Goodwin, who became presiding judge
He acknowledged that a factor in his
County Superior Court judge in 1989, ran
in June 1988, will be replaced by Ninth
stepping down was frustration in dealing
unopposed in November for a six-year
MPENSATION
Circuit Judge J. Clifford Wallace.
with the General Services Administration,
term. He announced he would resign his
V. MYERS:
Goodwin, 67, will become a senior
the federal agency that leases, builds and
seat before that term begins Jan. 7 to
ute affords rem-
judge and will be able to devote all his
maintains court facilities. Goodwin
avoid the constitution's prohibition on
hose granted un-
working time to cases. As presiding judge
blames the agency for delays in finding
accepting another public job during the
pensation laws.
of the nation's largest circuit, Goodwin
the new headquarters.
middle of a judicial term.
said he worked long hours - sometimes
"I suppose some of the frustration with
Article VI, Section 17 states that during
seven days a week - with about half of
the space problems weighed a little on my
the term for which a judge was "selec-
OK INSIDE
his time spent on administrative duties.
mind,' he said. "I got to thinking, 'You
ted" he "is ineligible for public em-
During the past 14 months those duties
don't really have to do this.
ployment or public office other than
have been dominated by efforts to find the
What Goodwin would rather be doing
judicial employment or judicial office."
Ninth Circuit a new home in the wake of
SEE GOODWIN PAGE 7
SEE AG SAYS PAGE
Goodwin Plans to Take Senior Status Jan. 31
CONTINUED FROM PAGE 1
is hearing cases and enjoying more leisure
become chief judge, he wrote, "because
uncanny ability to communicate and get
ing as chief judge, was appointed to the
activities - spending time with his four
of the honor and the professional chal-
along with the circuit's diverse group of
Ninth Circuit by President Richard Nixon
grandchildren, five children, and brothers
lenge of presiding over this great court."
judges.
in 1971. He had spent the two preceding
and sisters, many of whom live in his na-
Goodwin's peers praised the chief
"Judge Goodwin has no enemies in the
years on the U.S. District Court for the
tive Oregon, where he has a home. He
judge for keeping the Ninth Circuit func-
world that I know of, Nelson said. "He
District of Oregon, and the nine years
said he'll be able to spend more time
tioning smoothly after the quake and for
is one of the most loved and revered men
before that as an associate justice of the
outdoors horseback riding and working on
his tree farm.
making as much progress as he did on a
on and off the court I have ever seen."
Oregon Supreme Court. He began his
new headquarters. Some of the staff will
judicial career on the Lane County, Ore.,
"Christmas is a funny thing," he said.
Ninth Circuit Judge Arthur Alarcon
begin moving into the new facility at Two
Circuit Court.
"It makes you realize that there are more
said Goodwin was able to maintain har-
Rincon Center this spring.
Wallace, 62, also a Nixon appointee,
important things in life than just work,
mony among his peers.
takes over based on seniority. He said his
work, work."
"This was a huge, huge administrative
"His great talent as an administrator is
biggest challenge will be trying to devise
Goodwin notified his colleagues of the
burden, which he handled extremely
his charm and his wit and his keen un-
ways for the court to deal with its ever-
decision in a letter dated Wednesday. He
well," said Ninth Circuit Judge Dorothy
derstanding of people," he said. "He
increasing caseload. He said he has some
could have become a senior judge when
Nelson.
didn't let any fires get started."
ideas, but that it's too early to talk about
he turned 65 2½ years ago but opted to
She and others said Goodwin has an
Goodwin, who replaced James Brown-
them.
High Court Exposes 115 to Further Challenges
CONTINUED FROM PAGE 3
hearsay during preliminary hearings and
the Raven decision gutted 115.
What
tack recently by prosecutors, who claim
ing to challenge Prop 115's surviving
the elimination of post-indictment prelim-
is
left
of
115
is
nothing
to
really
that it is tougher to win a conviction with
provisions had better not expect to get
inary hearings in felony cases.
worry about, frankly.
judge-selected juries.
much respect from the California Su-
By contrast, Grace Suarez, head of re-
search for the San Francisco public de-
As an example, Suarez pointed to the
"Many of the statutory aspects of 115
preme Court.
fender's office, argued that the California
measure's provision for judicial voir dire,
do not pass state constitutional muster,'
"This court is callous to the rights of
Supreme Court's ruling signed Prop 115's
claiming it "at worst makes no difference
Suarez said.
little people," Bryan said. "We've prob-
death warrant.
and at best favors the defense. That as-
But San Francisco criminal defense at-
ably seen the edge of the parameter on
"There's no question," she said, "that
pect of 115 has, in fact, come under at-
torney Robert Bryan said defendants hop-
what the court is going to do on 115.
Directory of Certified Public Accountants
BAKER & MᶜKENZIE
ATTORNEYS AT LAW
660 HANSEN WAY
FRANCISCO. 29 1990 DEC DEC26'90 A
U.S.POSTANT
PALO ALTO, CALIFORNIA 94304
0.25-
CA
LEE LIBERMAN ASSOCIATE COUNSEL
TO THE PRESIDENT
ROOM 115 OLD EXECUTIVE OFFICE BLDG
WASHINGTON D C'20500
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KLEINFELD
CA9
The following is a brief summary of Judge Kleinfeld's most noteworthy
published decisions since his appointment as a Federal district court
judge in May of 1986. 1 have tried to focus upon those opinions of
Judge Kleinfeld that speak in some significant way to the nature of
his judicial philosophy.
Alaska Laborers V. Constructions Inc., 644 F.Supp. 1104 (1986)
In this case, JK interpreted a union collective bargaining contract
through resort to close analysis of its text and that of a trust
agreement cited within it, e.g. "The quoted phrase is repeated in
each of the four sections of the agreement on trust funds. I think
a fair construction requires that the capitalized word 'Laborers'
be read to mean members of the unions
designated on the cover
of the document. The capitalization of the word suggests member-
ship in the designated labor unions. Why else use a capital 'L'?
The document does not generally capitalize nouns."
Mathews V. N. Slope Borough, 649 F. Supp. 1571 (1986)
In this case, JK rejected plaintiff's attempt to evaluate a Title
VIJ wrongful discharge action on the basis of a disparate impact
standard, instead setting forth a disparate treatment standard.
Further, he properly relied upon the Supreme Court's decision in
Burdine to avoid shifting the burden of proof to the defendant
following a prima facie case being made by the plaintiff. A]-
though presented with a case in which some evidence that a
racially-charged work environment existed, JK did not let this
distract him from even stronger evidence that the plaintiff's
discharge was directly related to poor work performance, not to
any sense of racial animus. In a prior opinion relating to this
same case, 646 F. Supp. 943, JK held that Title VII contained no
jury trial rights. He also declined to exercise pendant juris-
diction over related state claims by the plaintiff for breach
of contract and intentional infliction of emotional distress.
"A federal judge should avoid needless decisions of state law.
St, Paul Fire V. Sauer, 648 F. Supp. 959 (1986)
JK held that Alaska's tort statute of limitations barred a suit
against a contractor alleging breach of implied duty. In re-
jecting the plaintiff's argument that such a result would be
unfair, JK again undertook an extremely close analysis of the
relevant statute and concluded that "the words of the statute,
however, cannot be reconciled with this reading sometimes
because it develops historically rather than as a comprehensive
scheme of deduction and logic, the law contains inconsistencies
difficult to reconcile with logic or policy. Even if there is
no sensible reason, the legislature has considerable discretion
to draw lines as it chooses in this area. Courts are not con-
stitutionally empowered to rewrite statutes when they imagine
that if the legislature were to examine them, it would do so.
11
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Witt V. JP, Inc., 655 F.Supp. 480 (1987)
JK rejected the notion that a statute of limitation was a "mere
technicality" and denied a contract claim by a construction firm
for work done by the firm on a public works project. He refused to
read in a requirement that the government must have been "prejudiced"
in order to assert the statute of limitations defense.
Sweet Summer Night Music V. Aiken, 659 F.Supp. 52 (1987)
In determining whether the "juke box exemption" applied to a claim of
copyright infringement, JK held that a juke box located on a stage on
which "naked women" danced, which was inaccessible to members of the
audience, did not constitute a "coin-operated phonorecord player
readily examined by the public.' Payment of royalties on copyrighted
music was therefore required by the defendant-jukebox owner.
Sisemore V. U.S. News, 662 U.S. 1529 (1987)
JK denied summary judgement to a national newsmagazine in a defama-
tion action by a Vietnam veteran who claimed that magazine had
suggested that he suffered from mental disease stemming from his
war experiences. Issue of whether actual malice existed on the part
of the magazine was irrelevant since veteran was not a "public
figure". JK found that a material issue of fact existed since
a reasonable reader of the magazine could have concluded that
its characterizations of the plaintiff were the result of "care-
ful reporting, not [mere] heated argument
Factual inaccuracies
idea' might be deemed by a jury in these circumstances to amount to
to make the plaintiff fit the preconceived stereotype in the 'story
a reckless disregard for the truth."
U.S. V. Boltz, 663 F. Supp. 956 (1987)
In this case, JK interpreted FRCP 11 (relating to the inadmissa-
bility of statements made in the course of plea negotiations with
the Government) to require the suppression of statements made by
the defendant in the course of negotiations over immunity, dismissal
of charges and the acceptance of lesser charges
occurred between himself and the Government, even prior to they for-
where
mal charges being filed by the Government. "Since they related
to ultimate disposition of a threatened criminal case against him,
they are properly characterized as 'plea discussions'. Most law-
yers cussions.' and laymen would understand the phrase to mean just such dis-
Interior Glass V. FDIC, 691 F. Supp. 1255 (1988)
In the course of resolving dispute between state bank and the FDIC,
JK again engaged in an intelligent and close analysis of the words
of the relevant statutes. "Stretching
to
cover
would violate the principle of ejusdem generis
lawyer's
letters
If a lawyer's let-
nified by problems of interpreting the letters."
ter were an 'other paper', the uncertainty of the law would be mag-
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U.S. V. Bal, 694 F. Supp. 1404 (1988)
JK held that a prior indictment did not automatically lapse upon the
filing of a superseding information but that a motion to dismiss and
an order dismissing the indictment were required, even though double
jeopardy would have barred an actual prosecution on the indictment
after a judgement on the information. "The procedural reason is that
the FRCP allows dismissal on the Government's motion only 'by leave
of court'. This implies that the filing of an information with the
word 'superseding' in the title cannot function effectively as a dis-
missal of the indictment because the information is filed at the
Government's discretion, not 'by leave of court'.
U.S. V. Hoffman, 733 F. Supp. 314 (1990)
Federal law provides that defendants violating terms of supervised
release following terms of imprisonment may, if they violate the
terms of the release, be required to serve "all or part of the
term of supervised release" in prison. JK interpreted law to
require drug trafficker, who had already served maximum one year
term in prison, to serve an additional year in prison if he
violated terms of release at any time during his one year sup-
ervised release, "Defendant would have the court read the statutes
in combination to mean that a defendant cannot be required to serve
more than a statutory maximum of one year, even if he violates a
condition of supervised release. If the statutes were ambiguous,
the rule of lenity might compe1 such a reading. But a hypothetical
case demonstrates that the statutes cannot possibly mean what the
defendant suggests [Only the court's interpretation] gives
meaning to all of the statutes that Congress passed with regard to
the sentence which can be imposed for a misdemeanor such as the
defendant's.
Venetie V. Alaska, 687 .Supp. 1380 (1988)
In this case, JK interpreted the 11th Amendment in the context of
claims by Alaskan native Indians that they were entitled to wel-
fare benefits administered by the State of Alaska. Although the
sought-after relief was fashioned in the manner of an injunction
(to pay funds wrongfully withheld), JK concluded that the 11th
Amendment prevented a federal district court from requiring that
the State pay such monies. "Nor can the federal court issue a
declaratory judgement regarding past conduct. Such a judgement
either operates as res judicata in a subsequent state proceeding
for damages or else is purposeless, so it is tantamount to a money
judgement,' Further, while recognizing that Fitzpatrick V. Bitzer
upheld Congress' authority to "abrogate" the 11th Amendment pur-
suant to its 14th Amendment "enforcement" powers, JK relied upon
Atascadero's requirement that the abrogation be "unmistakable" to reject the
argument that the Congress had abrogated through a general statute con-
ferring jurisdiction on district courts to resolve federal question
cases brought by Indian tribes. "The general reference to 'all
civil actions' is exactly the kind of language which under Atasca-
dero cannot amount to abrogation." Relying upon their ratifica-
tion sequence, JK further refused to infer that the Congress had
abrogated the 11th Amd. pursuant to its Article I power to "regu-
late commerce
with the Indian Tribes".
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The following is a summary of circuit court decisions that relate to
opinions by Judge Kleinfeld and which provide additional insight into
his judicial philosophy.
U.S. V. Lemon, 824 F.2d 763 (1987)
In this decision, the 9th Circuit held that JK did not commit rever-
sible error in (a) failing to give specific unanimity instruction in
the matter of defendant's possession of a firearm where defendant had
expressly admitted during trial his possession of such firearm; or (b)
failing to instruct jury on justification defense to charge of being
a felon in possession where facts did not warrant.
Cabasug V. INS, 837 F.2d 880 (1988)
In this decision, JK sitting by designation on 9th Circuit authored
an opinion holding that the Congress, by virtue of its "almost plenary"
power in the area of immigration, was entitled to provide for the
deportation of aliens unlawfully possessing machine guns or sawed-off
shotguns, without the possibility of discretionary relief by the INS,
even though it had chosen to allow for such potential relief in the
case of aliens committing arguably more serious crimes. "We do not
agree with the implicit proposition that the Constitution requires the
Congress to 1ay out crimes on a spectrum and grant at least as much
discretion for the less serious as for any more serious crimes
Congress may fashion a sanction without discretionary mitigating fea-
concerned tures in order to deter a kind of conduct about which it is especially
rational means to achieve the legitimate purpose of de-
terring the forbidden weapons by aliens." JK also clearly recognized
that the plaintiff in this case, under the guise of asking the courts
to correct an administrative aberration by the INS, was in fact asking
1t to overturn a considered judgement of the Congress.
Sparling V, Hoffman, 864 F.2d 635 (1988)
9th Circuit upheld JK decision to dismiss complaint for failure to
plead the factual elements of fraud, after repeated invitations by
the court to do so, even though analysis of every "cause of action"
in the complaint set forth all of the required elements. Circuit
also upheld JK's dismissa) of RICO claim by plaintiff-shareholders
against another corporation on the grounds that RICO claims based
upon injuries done to a corporation cannot be claimed derivatively.
JK held that plaintiffs had no standing to argue such derivative
claims.
New Alaska V. Guetschow, 869 F.2d 1298 (1989)
9th Circuit upheld JK decision to dismiss claims against defen-
dant on grounds that they were not subject to diversity juris-
diction where complaint failed to allege that plaintiff's prin-
ciple place of business (and its place of incorporation) were
somewhere other than Alaska, the domicile of the defendant.
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U.S. V. Cannizzaro, 871 F.2d 809 (1989)
9th Circuit upheld JK's decision that law allows consecutive sentences
to be imposed for convictions for armed robbery and use of a firearm in
the commission of a felony. Also upheld his decision that he was not
required to make specific findings of fact concerning a defendant's
financial condition and ability to pay restitution prior to issuing an
order requiring restitution.
U.S. V, Remsing, 874 F.2d 614 (1989)
9th Circuit (Skopil, Nelson, Brunetti) found that JK acted im-
properly in failing to review a magistrate's suppression order on
a de novo basis, where he was requested to do so by prosecutors.
Rather, JK adopted magistrate's order and granted the suppression
motion without reviewing a transcript or recording of the procee-
dings before the magistrate. Defendant was charged with fish &
game violations and suppressed evidence included guns, animal hides,
skulls, antlers and records of hunting trips.
U.S. V. Lefler, 880 F.2d 233 (1989)
9th Circuit upheld JK decision that statute authorizing U.S. Marshal
to furnish defendants with transportation to places where they are
required to go under the terms of probation did not "by its plain
language" apply to transportation costs incurred to hearings to de-
termine the costs of prosecution to be taxed against a defendant.
U.S. V. Restrepo, 884 F.2d 1294 (1989)
9th Circuit upheld JK decision that a defendant's sentence could be
enhanced for the "possession" of a firearm even where there was no
finding of a connection or nexus between the firearm and the offense.
JK also upheld in allowing the admission into evidence of prior acts
of criminal conduct by defendant where this was accompanied by lim-
iting instruction that such conduct admissible only for purposes of
proving matters relating to the defendant's state of mind and not
his propensity for committing the immediate offense.
U.S. V. Smith, 912 F.2d 322 (1990)
9th Circuit upheld JK decision that double jeopardy did not bar a
criminal action against an individual following a bad conduct dis-
charge by the Army against the individual on the basis of the same
facts.
Wages V. IRS, 915 F.2d 1230 (1990)
9th Circuit upheld JK that taxpayer did not have Bivens claim against
IRS agents where specific alternative remedies for disputes arising out
of the collection of taxes were expressly provided by Congress. Also
upheld JK that a judge who concludes that he lacks subject-matter juris-
diction in a case has no power to rule alternatively on merits of case.
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U.S. V. Restrepo, 903 F.2d 643 (1990)
9th Circuit upheld various JK rulings on the application of the sen-
tencing guidelines to a convicted narcotics trafficker: (a) sentencing
judge can properly consider quantities of drugs for which defendant
not convicted in determining base offense level for sentencing; (b)
preponderance of evidence standard controls judicial sentencing de-
terminations; and (c) the application to the defendant of clarified
guidelines, rather than new guidelines, did not constitute an ex
post facto application of the law. As Judge Pregerson said in dis-
sent to the first of these propositions, "As a consequence, punish-
ment for the convicted counts is automatically increased The
majority's interpretation probably will make the prosecutor's job
easier. Under their holding, the Government need only convict the
defendant of one count to punish him or her for all related criminal
behavior proved by a preponderance of the evidence."
Noatak V. Hoffman, 896 F.2d 1157 (1990)
9th Circuit reversed JK (Noonan, Thompson), with Kozinski dissenting,
in this case involving dismissal for lack of jurisdiction of Indian
claims against state officials for revenue sharing monies appropri-
ated by legislature for cities and villages. Circuit found that
11th Amendment did not bar suit, both because states consented to
such suits under Article I, section 8 providing Congress with autho-
rity to regulate commerce with Indian tribes and because of general
legislation enacted by Congress which provided district courts with
jurisdiction to hear civil suits by Indian tribes and which
"abrogated" 11th Amendment (see also Venetie). As court expressed
it, the issue in case was "Do the principles of federalism im-
plicit in the 11th Amendment indicate that the states possess 1m-
munity from suit by an Indian tribe?" However, court effectively
avoided issue in concluding that state in consenting to the Con-
stitution and to federal jurisdiction of Indian affairs has effec-
tively consented to being sued. "The 11th Amendment has not re-
voked the consent of the states, because neither in terms nor
purpose does the amendment apply to Indian tribes. No other gen-
eral immunity protects the state from suit by the tribes."
In addition to the summary contained in Venetie, I would call
your attention to the following statements by JK in connection
with the meaning of the 11th Amendment: "The non-literal reading
of the words of the Amendment by the courts adds mystery. If the
point of the Amendment were to preserve the states as sovereigns
free from federal judicial interference, why ignore the phrase
'or equity' in the Amendment which would seem to bar suits for
injunctive relief? If private remedies are needed to effectuate
the 14th Amendment, why not read the 'citizens of another State'
language to mean that the Amendment permits suits in law or equity
by citizens of the same state, but not citizens of another state?
11th Amendment jurisprudence exemplifies Holmes' proposition that
a 'page of history is worth a volume of logic' In any event,
whether it makes sense or not, the distinctions are imposed by
higher courts than this one."
THE WHITE HOUSE
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DATE RECEIVED: DECEMBER 31, 1990
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NAME OF CORRESPONDENT: THE HONORABLE ALFRED T. GOODWIN
SUBJECT: SUBMITS HIS RESIGNATION FROM REGULAR ACTIVE
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED T. GOODWIN
Chief Judge
United States Courthouse
December 26, 1990
125 South Grand
P.O. Box 91510
Pasadena, California 91109-1510
The President
of the United States
The White House
Washington, D. C.
Dear Mr. President:
Pursuant to 28 U.S.C. § 371 (b), it is my intention
to retire from regular active service as a United States
Circuit Judge on January 31, 1991. Under § 371 (b), I
will continue to perform judicial service as a senior
circuit judge and retain my office, staff and chambers.
I am writing you at this time in order to expedite
the appointment of my successor, pursuant to § 371(d).
It has been a privilege to serve as an active
member of the federal judiciary since December 11, 1969,
and I look forward to service as a senior judge.
Respectfully yours,
Alfred Goodu
Alfred T. Goodwin
Chief Judge
Copy to: The Chief Justice of the United States
ID# 201447
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED T. GOODWIN
Chief Judge
United States Courthouse
December 26, 1990
125 South Grand
P.O. Box 91510
Pasadena, California 91109-1510
The President
of the United States
The White House
Washington, D. C.
Dear Mr. President:
Pursuant to 28 U.S.C. § 371 (b), it is my intention
to retire from regular active service as a United States
Circuit Judge on January 31, 1991. Under § 371(b), I
will continue to perform judicial service as a senior
circuit judge and retain my office, staff and chambers.
I am writing you at this time in order to expedite
the appointment of my successor, pursuant to § 371(d).
It has been a privilege to serve as an active
member of the federal judiciary since December 11, 1969,
and I look forward to service as a senior judge.
Respectfully yours,
Alfred Goodu
Alfred T. Goodwin
Chief Judge
Copy to: The Chief Justice of the United States
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED T. GOODWIN
Chief Judge
December 26, 1990
United States Courthouse
125 South Grand
P.O. Box 91510
Pasadena, California 91109-1510
The President
of the United States
The White House
Washington, D. C.
Dear Mr. President:
Pursuant to 28 U.S.C. § 371 (b), it is my intention
to retire from regular active service as a United States
Circuit Judge on January 31, 1991. Under § 371 (b), I
will continue to perform judicial service as a senior
circuit judge and retain my office, staff and chambers.
I am writing you at this time in order to expedite
the appointment of my successor, pursuant to § 371(d).
It has been a privilege to serve as an active
member of the federal judiciary since December 11, 1969,
and I look forward to service as a senior judge.
Respectfully yours,
Alfred Goodu
Alfred T. Goodwin
Chief Judge
Copy to: The Chief Justice of the United States
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED T. GOODWIN
Chief Judge
December 26, 1990
United States Courthouse
125 South Grand
P.O. Box 91510
Pasadena, California 91109-1510
The President
of the United States
The White House
Washington, D. C.
Dear Mr. President:
Pursuant to 28 U.S.C. § 371(b), it is my intention
to retire from regular active service as a United States
Circuit Judge on January 31, 1991. Under § 371 (b), I
will continue to perform judicial service as a senior
circuit judge and retain my office, staff and chambers.
I am writing you at this time in order to expedite
the appointment of my successor, pursuant to § 371(d).
It has been a privilege to serve as an active
member of the federal judiciary since December 11, 1969,
and I look forward to service as a senior judge.
Respectfully yours,
Alfred Goodu
Alfred T. Goodwin
Chief Judge
Copy to: The Chief Justice of the United States
THE WHITE HOUSE
WASHINGTON
October 19, 1990
Dear Mr. Morgan:
Thank you for your interest in being considered for an
appointment to the U.S. Court of Appeals, Ninth Circuit and for
forwarding your resume to us.
I have referred your letter and resume to the appropriate
selection officials, who, I can assure you, will give your
qualifications every consideration.
Sincerely,
her s.b
Lee S. Liberman
Associate Counsel to the President
W. Robert Morgan, Esquire
Morgan, Allmand, Pennypacker & Deacon
1651 North First Street
San Jose, California 95112
ID # 130723 CU
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130723cu
MORGAN, ALLMAND, PENNYPACKER & DEACON
ATTORNEYS AT LAW
ROBERT H MORGAN
KEVIN D ALLMAND
1651 NORTH FIRST STREET
PHILIP H PENNYPACKER
SAN JOSE, CALIFORNIA 95112
LINDA A. DEACON
(408) 453-7677
W. ROBERT MORGAN
JAMES SHULMAN
yray
FAX (408) 283-1166
OF COUNSEL
HEATHER M.D. GREEN
GORDON J FINWALL
STUART Bayden D KIRCHICK
March 28, 1990
President George Bush
White House
Washington D.C.
Dear Mr. President:
I am a California Lawyer with vast experience in the
practice of law. I am also a farmer with a considerable repu-
tation in the field of Morgan Horses on a national basis. I have
represented drug companies in the past, such as Barnes Hind
Pharmaceutical in Palo Alto, California.
At present, I am of counsel for a lawfirm having
reached the age of 65.
I have a number of friends in Congress such as Norm
Mineta and I am his campaign manager.
Senator Alquist of California is also a friend of mine
and I am his campaign manager.
I am an admirer of yours even more so since the capture
of Noriega. I hope you will nominate me for Judge of the Ninth
Circuit.
I believe I will have the support of a Democratic
Senator. I am sending a copy of this letter to him so that he
will know of my interest. Senator Alan Cranston has been a
personal friend of mine for some time. While I do not know
Senator Pete Wilson as well, I hope that I would also have his
support so I am sending a copy of this letter to him.
The practice of the laws are a very serious thing to
me. I was elected president of the Santa Clara County Bar
Association, and in Santa Clara County that is no small accomp-
lishment since we have over five hundred lawyers here and a
popular election.
I was later elected to a member of the Board of Gover-
nors of the State Bar and served as Vice-President of the
California State Bar.
President George Bush
March 28, 1990
Page Two
One of the honors which I have nationally is that I
have been elected a member of the International Academy of Trial
Lawyers. This group selects the best trial lawyers in the United
States and invites them to become a member. I am a member of
that association and have served as treasurer and president of
the association.
At one time I had a fantastic interest in federal law
and would like to bring that experience to the bench.
I have a lot of common sense and do not do radical
things just for the purpose of doing them. I am not afraid of
new challenges.
I would like to be interviewed by you for this position
if Senator Cranston and Senator Wilson offer me as a candidate
and if you would be considering me for this position. At pre-
sent, I am recovering from an injury to my hip. I anticipate I
will be walking normally free of a cane in about two weeks. I
hope I have your serious consideration.
Very truly yours,
W. Rebert Magan
W. ROBERT MORGAN
WRM/gsG4
CC: Congressman Norm Mineta
Senator Alan Cranston
Senator Pete Wilson
Congressman Don Edwards
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OKI AMERICA, INC.,
No. 88-1561
Plaintiff-Appellee,
D.C. No.
V.
CV-86-20417-SW
MICROTECH INTERNATIONAL, INC,,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Spencer M. Williams, District Judge, Presiding
Submitted January 9, 1988*
San Francisco, California
Filed April 7, 1989
Before: James R. Browning, Robert R. Beezer and
Alex Kozinski, Circuit Judges.
Per Curiam; Concurrence by Judge Kozinski
SUMMARY
Torts
Affirming a summary judgment, the court held that neither
the evidence nor the pleadings established the existence of the
tort of bad faith denial of the existence of a contract.
*The panel finds this case appropriate for submission without oral argu-
ment pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a).
3587
3588
OKI AMERICA V. MICROTECH INTERNATIONAL
In its pleadings, appellee Oki America, Inc. asserted that
there was no contract entered into between the parties, and
that a course of dealing between them allowed the contract to
be cancelled prior to delivery. The evidence indicated that
Oki believed that the contract could be cancelled at will and
that the parties did not agree as to its meaning. Microtech
argued that the pleadings and evidence established the tort.
[1] The elements of the tort of bad faith denial of the exis-
tence of a contract are: (1) the denial of the existence of a con-
tract (2) in bad faith, and (3) without probable cause. [2]
Although pleadings may give rise to admissions, the assertion
of inconsistent affirmative defenses does not constitute such
an admission. [3] One of the two inconsistent pleas cannot be
used as evidence in the trial of the other because a contrary
rule would place a litigant at his peril in exercising the liberal
pleading provisions of the Federal Rules. [4] An assertion that
the terms of a contract preclude relief is not a denial of the
existence of the contract.
Circuit Judge Kozinski concurred, observing that the tort
is another example of judicial interference with business rela-
tionships.
COUNSEL
Russell J. Hanlon, Berliner, Cohen & Biagini, San Jose, Cali-
fornia, for the defendant-appellant.
James E. Jackson, Cupertino, California, for the plaintiff-
appellee.
OPINION
PER CURIAM:
The trial court granted Oki summary judgment on Microt-
ech's counterclaim for the bad faith denial of the existence of
OKI AMERICA V. MICROTECH INTERNATIONAL
3589
a contract. Microtech appeals, claiming a genuine dispute of
material fact exists as to whether Oki denied the existence of
the contract.
[1] The elements of this tort are: (1) the denial of the exis-
tence of a contract (2) in bad faith, and (3) without probable
cause. Seaman's Direct Buying Service, Inc. V. Standard Oil
Co., 36 Cal.3d 752, 769 (1984). Mere denial of liability under
a contract does not suffice; the defendant must deny the exis-
tence of the contract. Quigley V. Pet, Inc., 162 Cal.App.3d
877, 890-92 (1984).
Summary judgment is reviewed de novo. Darring V. Kin-
cheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must deter-
mine, viewing the evidence in the light most favorable to
Microtech, whether any genuine issue of material fact exists
and whether Oki was entitled to judgment as a matter of law.
Ashton V. Cory, 780 F.2d 816, 818 (9th Cir. 1986).
[2] First, Microtech notes Oki asserted as an affirmative
defense that "[t]here was no contract entered into between the
parties." Although pleadings may give rise to authorized
admissions under Fed. R. Evid. 801(d)(2)(C) and be consid-
ered despite the hearsay rule, 4 D. Louisell & C. Mueller,
Federal Evidence § 425, at 302 (1980), this pleading is not an
admission. Oki alleged three mutually inconsistent affirma-
tive defenses: (1) no contract existed, (2) course of dealing
and usage of trade permitted it to "cancel its performance at
any time prior to 30 days before shipment date," and (3) per-
formance was legally impossible.
[3] Such inconsistent pleading is permissible under Fed. R.
Civ. P. 8(e)(2). Therefore, as the Fifth Circuit has ruled, "one
of two inconsistent pleas cannot be used as evidence in the
trial of the other" because a contrary rule "would place a liti-
gant at his peril in exercising the liberal pleading
provi-
sions of the Federal Rules." Continental Ins. Co. v. Sherman,
439 F.2d 1294, 1298-99 (5th Cir. 1971); see also 4 D. Louisell
3590
OKI AMERICA V. MICROTECH INTERNATIONAL
& C. Mueller § 425, at 306 & n.75. In addition, this pleading
is not sufficient to establish the elements of the tort: "once liti-
gation has commenced, the actions taken in its defense are
not
probative of whether [a] defendant in bad faith denied
the contractual obligation prior to the lawsuit." Palmer V. Ted
Stevens Honda Inc., 193 Cal.App.3d 530, 539 (1987).
[4] Second, Microtech relies on Oki's affirmative defense
that there existed between the two parties "a course of dealing
which allowed the party issuing a purchase order to cancel its
performance at any time prior to 30 days before shipment
date." This evidence fails for the same reasons as Microtech's
reliance on Oki's affirmative defense that there was no con-
tract between the two parties. In addition, an assertion the
terms of a contract preclude relief is not a denial of the
existence of the contract.
Third, Microtech points to testimony of Oki's Vice Presi-
dent of Sales that he believed Oki or Microtech could unilat-
erally cancel the contract at any time for any reason. This,
too, is evidence of Oki's view of the meaning of contract
terms rather than of its refusal to acknowledge the contract.
Fourth, Microtech relies on the underscored portion of the
following quotation from a letter Oki's president wrote
Microtech:
While I appreciate your belief that you have a binding
contract, I must also respectfully argue that our
agent, Advanced Design Group, clearly described
our pricing dilemma on its quote of December 9,
1985. As you have acknowledged, you accepted our
quote in your purchase order and this note was a
prominent and in fact crucial part of that quote.
Therefore we feel strongly that you accepted the
price renegotiation language.
Read in context, this letter provides no support for Microt-
ech's assertion Oki denied the existence of the contract.
OKI AMERICA V. MICROTECH INTERNATIONAL
3591
Rather, the letter disputes Microtech's view of the terms of
the contract.
Finally, Microtech offers the testimony of a third party that
an Oki sales manager told him "Oki had no intentions o[f]
delivering the product at the prices that they agreed upon"
and that "Oki never had a written contract stating the firm
prices over the schedule of the contract." This conceded hear-
say, Microtech submits, is admissible under Fed. R. Evid.
801(d)(2)(D) as the admission of a party's agent.
As proponent of this evidence, Microtech must demon-
strate it is "a statement by [Oki's] agent or servant concerning
a matter within the scope of the agency or employment, made
during the existence of the relationship." Fed. R. Evid. 801(d)
(2)(D); Breneman V. Kennecott Corp., 799 F.2d 470, 473 (9th
Cir. 1986). This Microtech failed to do. On the contrary, the
sales manager testified "Microtech was not in my geography.
I knew nothing about Microtech as a customer with regard to
anything." Since the sales manager's statement did not con-
cern a matter within the scope of his employment as Rule
801(d)(2)(D) requires, see Breneman, 799 F.2d at 473, testi-
mony regarding his statement is inadmissible.
Microtech failed to identify any admissible evidence that
Oki denied the existence of the contract. Summary judgment
for Oki was therefore appropriate.
AFFIRMED.
KOZINSKI, Circuit Judge, concurring:
Nowhere but in the Cloud Cuckooland of modern tort the-
ory could a case like this have been concocted. One large cor-
poration is complaining that another obstinately refused to
acknowledge they had a contract. For this shocking miscon-
3592
OKI AMERICA V. MICROTECH INTERNATIONAL
duct it is demanding millions of dollars in punitive damages.
I suppose we will next be seeing lawsuits seeking punitive
damages for maliciously refusing to return telephone calls or
adopting a condescending tone in interoffice memos. Not
every slight, nor even every wrong, ought to have a tort rem-
edy. The intrusion of courts into every aspect of life, and par-
ticularly into every type of business relationship, generates
serious costs and uncertainties, trivializes the law, and denies
individuals and businesses the autonomy of adjusting mutual
rights and responsibilities through voluntary contractual
agreement.
I
In inventing the tort of bad faith denial of a contract,
Seaman's Direct Buying Serv., Inc. V. Standard Oil Co., 36
Cal. 3d 752, 686 P.2d 1158, 206 Cal. Rptr. 354 (1984), the
California Supreme Court has created a cause of action so
nebulous in outline and so unpredictable in application that
it more resembles a brick thrown from a third story window
than a rule of law. Seaman's gives nary a hint as to how to dis-
tinguish a bad faith denial that a contract exists, from a dis-
pute over contract terms, from a permissible attempt to
rescind a contract, or from "a loosely worded disclaimer of
continued contractual responsibility." Quigley V. Pet, Inc.,
162 Cal. App. 3d 877, 890, 208 Cal. Rptr. 394 (1984).
Small wonder: It is impossible to draw a principled distinc-
tion between a tortious denial of a contract's existence and a
permissible denial of liability under the terms of the contract.
The test - if one can call it such - seems to be whether the
conduct "offends accepted notions of business ethics."
Seaman's, 36 Cal. 3d at 770. This gives judges license to rely
on their gut feelings in distinguishing between a squabble and
a tort. As a result, both the commercial world and the courts
are needlessly burdened: The parties are hamstrung in devel-
oping binding agreements by the absence of clear legal princi-
ples; overburdened courts must adjudicate disputes that are
OKI AMERICA V. MICROTECH INTERNATIONAL
3593
incapable of settlement because no one can predict how - or
even by what standard - they will be decided.
Seaman's throws kerosene on the litigation bonfire by hold-
ing out the allure of punitive damages, a golden carrot that
entices into court parties who might otherwise be inclined to
resolve their differences. Punitive damages once were
reserved for truly outrageous conduct; even then, awards
were relatively small. See, e.g., Lanigan V. Neely, 4 Cal. App.
760, 89 P. 441 (1907) (punitive damages awarded for breach
of promise of marriage when plaintiff's reliance on the prom-
ise resulted in pregnancy); Scheps V. Giles, 222 S.W. 348 (Tex.
Civ. App. 1920) (punitive damages awarded for wrongful dis-
charge where employer publicly called employee a liar and
ordered her out of his sight). Today punitive damages are
obtained in cases involving fairly innocuous conduct, see,
e.g., April Enters., Inc. V. KTTV, 147 Cal. App. 3d 805, 195
Cal. Rptr. 421 (1983) (plaintiff sued defendant for erasing
videotapes of television shows, although the contract explic-
itly authorized such erasure; jury awarded $14 million in
punitive damages); Klimek V. Hitch, 124 Ill. App. 3d 997, 464
N.E. 2d 1272 (1984) (landowner sued his neighbor for tres-
pass and destruction of a hedgerow; court awarded $10 com-
pensatory damages and $14,500 punitive damages), often in
amounts that seem to be limited only by the ability of lawyers
to string zeros together in drafting a complaint.
This tortification of contract law - the tendency of con-
tract disputes to metastasize into torts - gives rise to a new
form of entrepreneurship: investment in tort causes of action.
"If Pennzoil won $11 billion from Texaco, why not me?"
That thought must cross the minds of many enterprising law-
yers and businessmen. A claim such as "defined" by Seaman's
is a particularly attractive investment vehicle: The potential
rewards are large, the rules nebulous, and the parties uncon-
strained by such annoying technicalities as the language of the
contract to which they once agreed. Here, for example, the
contract was largely beside the point. Microtech instead
3594
OKI AMERICA V. MICROTECH INTERNATIONAL
relied on statements in Oki's pleadings, rumors racing
through the Oki grapevine, and a letter in which Oki's presi-
dent offers his interpretation of the contract. On the basis of
these minutiae, Microtech ginned up a claim of $600,000 in
compensatory damages and $2.5 million in punitive dam-
ages. And why not? Even a one in ten chance of winning
would justify an investment of over $300,000 in attorney's
fees.
As this case illustrates, business relationships are complex
organisms, not always as neatly structured as one could wish
for. The record presents plausible support for both sides inso-
far as the contract dispute is concerned. That issue settled
early in the litigation, everyone presumably having learned a
valuable lesson on the need to tidy up business relationships.
But the case drags on, kept alive by Microtech's vain hope
of parlaying a business squabble into a $3.1 million gold
mine. The judicial machine keeps churning, fueled by the
energies of the lawyers, the parties, a district judge, three
appellate judges, their respective staffs and other myriad
components of the judicial process, all to resolve a claim that
turns out to be next to frivolous. One shudders to imagine the
resources that would be consumed in adjudicating a more col-
orable Seaman's case. We surely have more pressing claims
on our limited resources - safeguarding the environment,
protecting the rights of the accused, preventing, encroach-
ments on constitutionally protected liberties, to name a few
- than helping Microtech soothe its bruised feelings over a
quarrel with its supplier.
II
The eagerness of judges to expand the horizons of tort lia-
bility is symptomatic of a more insidious disease: the novel
belief that any problem can be ameliorated if only a court gets
involved. Not so. Courts are slow, clumsy, heavy-handed
institutions, ill-suited to oversee the negotiations between
OKI AMERICA V. MICROTECH INTERNATIONAL
3595
corporations, to determine what compromises a manufac-
turer and a retailer should make in closing a mutually profit-
able deal, or to evaluate whether an export-import
consortium is developing new markets in accordance with the
standards of the business community. See generally
Snyderman, What's So Good About Good Faith? The Perfor-
mance Obligation in Commercial Lending, 55 U. Chi. L. Rev.
1335, 1361 (1988).
Moreover, because litigation is costly, time consuming and
risky, judicial meddling in many business deals imposes oner-
ous burdens. It wasn't so long ago that being sued (or suing)
was an unthinkable event for many small and medium-sized
businesses. Today, legal expenses are a standard and often
uncontrollable item in every business's budget, diverting
resources from more productive areas of entrepreneurship.
Nor can commercial enterprises be expected to flourish in a
legal atmosphere where every move, every innovation, every
business decision must be hedged against the risk of exotic
new causes of action and incalculable damages. See generally,
P. Huber, Liability: The Legal Revolution and its Conse-
quences 153-71 (1988).
Perhaps most troubling, the willingness of courts to substi-
tute voluntary contractual arrangements to their own sense of
public policy and proper business decorum deprives individ-
uals of an important measure of freedom. The right to enter
into contracts - to adjust one's legal relationships by mutual
agreement with other free individuals - was unknown
through much of history and is unknown even today in many
parts of the world. Like other aspects of personal autonomy,
it is too easily smothered by government officials eager to tell
us what's best for us. The recent tendency of judges to insinu-
ate tort causes of action into relationships traditionally gov-
erned by contract is just such overreaching. It must be viewed
with no less suspicion because the government officials in
question happen to wear robes.
3596
OKI AMERICA V. MICROTECH INTERNATIONAL
III
Fortunately, the tide seems to be turning. The California
Supreme Court is once again leading the way. Foley V.
Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal.
Rptr. 211 (1988), has taken a bite out of Seaman's by holding
that tort remedies are not available for breach of the implied
covenant of good faith and fair dealing in an employment
contract. Moradi-Shalal V. Fireman's Fund Ins. Cos., 46 Cal.
3d 287, 758 P.2d 58, 250 Cal. Rptr. 116 (1988), revived the
common sense rule that third parties cannot sue insurers for
unfair insurance practices, overruling Royal Globe Ins. Co. V.
Superior Court, 23 Cal. 3d 880, 592 P.2d 329, 153 Cal. Rptr.
842 (1979).
But much remains to be done. As this case demonstrates,
Seaman's is a prime candidate for reconsideration. Others
come to mind: Pacific Gas & Elec. Co. V. G.W. Thomas Dray-
age & Rigging Co., 69 Cal. 2d 33, 442 P.2d 641, 69 Cal. Rptr.
561 (1968) (rejecting the notion that a contract can ever have
a plain meaning); Casey V. Proctor, 59 Cal. 2d 97, 109, 378
P.2d 579, 28 Cal. Rptr. 307 (1963) (holding that a release of
unknown claims has no effect in the absence of evidence
"apart from the words of the release"); and April Enters., Inc.
V. KTTV, 147 Cal. App. 3d 805, 195 Cal. Rptr. 421 (1983)
(holding that a party can be liable in tort for actions autho-
rized by the contract). At long last, however, we seem to be
moving in the right direction.
PRINTED FOR
ADMINISTRATIVE OFFICE-U.S. COURTS
BY BARCLAYS / ELECTROGRAPHIC-SAN FRANCISCO-415) 588-1155
The summary, which does not constitute a part of the opinion of the court, is
copyrighted © 1989 by Barclays Law Publishers.
PRIVATE USE, $300
Lee S. Liberman, Esq.
Associate Counsel
Office of Counsel to the President
The White House
Washington, D.C. 20500
THE WHITE HOUSE
WASHINGTON
May 23, 1989
Dear Mr. Devine:
Thank you for your letter of April 27, 1989 recommending
Mr. C. Timothy Hopkins for appointment to the United States Court
of Appeals for the Ninth Circuit and Mr. Standish Forde Medina
for appointment to the United States Court of Appeals for the
Second Circuit. Recommendations by individuals who are familiar
with a candidate's personal and professional qualifications are
an important factor in the deliberations of the President's
Federal Judicial Selections Committee. Thus, I can assure you
that your suggestions will be given thoughtful consideration
during the selection process.
Sincerely,
C. Boyden Gray
Counsel to the President
Mr. Thomas J. Devine
641 Lexington Avenue
New York, New York 10022
be: MURRAY DICKMAN
MARK PAOLETTA
ID# 032362
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
FG052
DATE RECEIVED: MAY 02, 1989
NAME OF CORRESPONDENT: MR. THOMAS J. DEVINE
SUBJECT: RECOMMENDS C. TIMOTHY HOPKINS FOR APPOINTMENT
TO NINTH CIRCUIT COURT AND STANDISH FORDE
MEDINA FOR THE SECOND CIRCUIT IN NEW YORK
ACTION
DISPOSITION
ROUTE TO:
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DATE
TYPE C COMPLETED
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REFER QUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE
(ROOM 75, OEOB) EXT-2590
KEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING
LETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS
MANAGEMENT.
32362
THOMAS J. DEVINE
641 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
Borgen cc: m.
212/593-1777
April 27, 1989
Dear George:
I want to go to bat for two good friends of mine who
are candidates for Circuit Court vacancies. They are C. Timothy
Hopkins for what is traditionally the Idaho seat on the Ninth
Circuit and Standish Forde Medina for the Second Circuit here.
You will remember Tim from a fundraiser at his home in
Idaho Falls some time ago and my telling you that he success-
fully led our counteroffensive against the Federal Land Bank in
my Beaver Creek Ranch days, when nobody else in the country was
winning. Tim is a fine lawyer, has been a real trooper among
Idaho Republicans and would make a first rate judge. Any politi-
cal opposition you might find would be traceable to Tim's putting
principle first in the last political days of George Hansen (not
to be confused with Orval Hansen), demonstrating what we all look
for in a federal judge.
Forde Medina is a partner of Debevoise & Plimpton, a
prominent litigator and a towering figure in the legal community
here. I mean figuratively, because he stands six four. His
grandfather was the legendary Harold Medina and Forde would like
to serve on the same Court. Among many others, Stan Resor would
attest from professional and personal experience that Forde would
be a superb choice for the Second Circuit, which I understand
needs an energetic New York City resident to help otherwise very
senior members carry a heavy load. In particular, Forde is
experienced in the complex corporate and financial cases which
tend to find their way to this Circuit.
Boyden Gray and Chase Untermeyer have growing files on
both. I want to assure you that Tim and Forde are both person-
ally the greatest, as Jonathan would say, and eminently deserv-
ing.
You are doing wonders. The best to you and Bar from
Alix and me.
Sincerely,
V.
President George Bush
The White House
Washington, DC 20501
RESUME'
Maurice O. Ellsworth
United States Attorney
District of Idaho
Address:
United States Attorney's Office
Home: P.O. Box 668
550 W. Fort, Box 037
Boise, Idaho 83701
Boise, Idaho 83724
(208) 336-6747
(208) 334-1211
Professional:
United States Attorney for Idaho, appointed July, 1985 and
currently serving in that position.
Associate Solicitor, United States Department of the Interior,
Washington, D.C. - 1981-1985.
Private Practice - Hailey and Carey, Idaho
1979-1980.
Elected Blaine County, Idaho Prosecuting Attorney, November, 1976.
Served from December, 1976 until January, 1979.
Private Practice - Hailey, Idaho
1975-1976.
Bar Memberships:
State of Idaho
Idaho United States District Court
Ninth circuit Court of Appeals
United States Supreme Court
Education:
Juris Doctorate - Arizona State University, College of Law
1975.
Bachelor of Science, Political Science - Arizona State University
1972.
Interests:
Reading, water skiing, bicycling, art, current events.
References:
Available Upon Request
CA9
D.A.arizor-
Curriculum Vitae
C Charles Rice )
Louis A. Stahl
PROFESSIONAL
Partner, Streich, Lang, Weeks & Cardon, Attorneys at
Law, 2100 First Interstate Bank Plaza, Phoenix, Arizona
85001.
Eighteen years experience in civil litigation.
Admitted to practice before all Arizona courts, the
U.S. District Court for the District of Arizona, the
Ninth Circuit Court of Appeals and the U.S. Supreme
Court.
Member of the State Bar of Arizona, the Maricopa County
Bar Association and the American Bar Association.
Member, Defense Research Institute, Phoenix Association
of Defense Counsel.
AV rated by Martindale-Hubbell.
Recent Professional Positions
Member, State Bar of Arizona's Committee on Rules of
Professional Conduct (Ethics Committee)
Frances Lewis Lawyer in Residence, Washington & Lee
Law School (Fall 1986)
Chairman, State Bar of Arizona's Professional Liability
Committee (1983-1986)
Vice-Chairman, Health Insurance Committee, Section of
Insurance, Negligence and Compensation Law, American
Bar Association (1973-1979)
Contributing Editor, "The Forum" (published by the
American Bar Association (1976-1979)
PUBLICATIONS
Author: "Ex Parte Interviews With Enterprise Employees:
A Post-Upjohn Analysis", 44 Washington & Lee Law Review
1181 (1987)
Co-author: "Standardized Agreements and the Parol
Evidence Rule: Defining and Applying the Expectations
Principle," 26 University of Arizona Law Review 793
(1984)
Contributing author: "Arizona Attorneys' Fees Manual"
(published by the State Bar of Arizona) (1987)
Co-author:
"Paralegal Services and Awards of
Attorneys' Fees Under Arizona Law," 20 Arizona Bar
Journal 21 (1984)
SEMINAR PANELIST
Maximizing Your Effectiveness In Taking and Defending
Depositions (State Bar of Arizona, October 1988)
Emerging Trends in Lender Liability (Arizona Bankers
Association, December 1987)
Lender Liability in Arizona (Professional Educational
Systems, Inc., November 1987)
The Evolution of First Party Bad Faith (Arizona Trial
Lawyers Association, November 1984)
EDUCATIONAL BACKGROUND
Notre Dame Law School
Doctor of Jurisprudence, summa cum laude (1971)
Honors
Graduated first in class
Recipient of full three-year scholarship and
grant
Dean Konop Award (given each year to member
of the senior class "who has the best record
in scholastic grades, application, deportment
and achievement")
O'Meara Award (presented annually to a member
of the graduating class "for outstanding
academic achievement")
Duquesne University
Graduate studies in political science (1965-66)
Wheeling Jesuit College
Bachelor of arts, magna cum laude (1962)
Honors
Dean's list - four years
Medal for second highest cumulative average
among B.A. candidates
Woodrow Wilson Fellowship nominee
Activities
Conservative Club (President)
Political Science Club (Treasurer)
Philosophy Club
Columnist - School Newspaper
RECENT ACTIVITIES AND MEMBERSHIPS
Current
Arizona Republican Caucus
Phoenix Chamber of Commerce
Arizona Bar Foundation (Founding Fellow)
Notre Dame Club of Phoenix
Previous
Trunk 'N Tusk Club of Phoenix
Volunteers for Reagan-Bush (1980)
Arizona Republican Party's Lawyers' Ballot
Security Committee (1980)
Phoenix and Maricopa County Young Republicans
Founding member, Vice President, Director and
legal counsel to Performing Arts Combined Talent
(PACT), a non-profit corporation dedicated to
exposing all segments of the community to cultural
events
PERSONAL
Home Address
307 W. Royal Palm Road
Phoenix, Arizona 85021
Telephone
(602) 997-2939 (home)
(602) 229-5210 (office)
Date of Birth
October 31, 1940
Marital Status
Married to Mary Kathleen
Quinn; four daughters
Availability subject to granting of leave of absence or other
mutually satisfactory arrangement with law firm.
References available upon request.
CA9
GUY HURLBUTT
Background
Guy Hurlbutt, 46, is Associate General Counsel and Assistant
Secretary of Boise Cascade. In that capacity, he heads Boise
Cascade's litigation section and manages litigation in state and
federal courts nationwide. From 1981 to 1984, Mr. Hurlbutt
served as U.S. Attorney in the District of Idaho. He received a
J.D. from the University of South Carolina Law School in 1970 and
a Master of Laws in Environmental Law from George Washington
University in 1974. Mr. Hurlbutt clerked for Chief Judge Robert
Martin in the District of South Carolina from 1971 to 1974.
After his clerkship, he went to work for the Office of the Idaho
State Attorney General, where he handled civil and criminal
litigation and eventually rose to the position of Chief Deputy
Attorney General. Mr. Hurlbutt was in private practice in Boise
from 1978 to 1981.
Department (Philosophy)
Mr. Hurlbutt has the most federal court experience and the best
judicial philosophy of any of the six candidates. He is not
brilliant, but he is a strong believer in an original meaning
jurisprudence and he articulately expounds the dangers of any
other type of jurisprudence. In discussing precedent, Mr.
Hurlbutt said that a federal judge's oath is to the Constitution,
not the precedent, although he of course recognizes the need for
a lower court to follow the binding precedent of a higher court.
One interviewer considered Mr. Hurlbutt's discussion of the Ninth
Amendment one of the best he had ever heard. Mr. Hurlbutt was
also strong on criminal justice issues. He said that he would
challenge anybody to find the exclusionary rule or Miranda in the
Constitution. It seems, however, that he is not particularly
outraged by Miranda. He also questions how anybody can honestly
challenge the constitutionality of the death penalty given that
it is explicitly recognized in the Constitution. On other issues
of importance, such as the right to privacy and discrimination,
Mr. Hurlbutt also identified himself as a strong judicial
conservative.
State (Reputation)
Mr. Hurlbutt has an excellent reputation in Idaho for
conscientiousness, conservatism, intelligence, honesty, and
industry. The GOP National Committeewoman, the only individual
to whom we spoke that expressed even minor concern about Mr.
Hurlbutt, was mainly troubled by the fact that Mr. Hurlbutt is
not a native Idahoan. The Republican judges in the area and the
- 2 -
Boise District Attorney said that Mr. Hurlbutt's nomination would
be enthusiastically received by the bar. Mr. Hurlbutt is
particularly respected for having done an excellent job as U.S.
Attorney. The current U.S. Attorney and Steve Trott also highly
recommend Mr. Hurlbutt.
Confirmation
Mr. Hurlbutt is a member of the Mountain States Legal Foundation.
- 3 -
EDWARD LODGE
Background
Edward Lodge, 54, has been a bankruptcy judge in Boise since
January of this year. He received an LL.B. in 1960 from the
University of Idaho Law School. Prior to going on the bankruptcy
bench, Judge Lodge spent 23 years as a state district judge. He
is the youngest judge ever appointed to the state district bench
in Idaho and is the recipient of many honors for judicial
excellence. Judge Lodge also spent two years on the probate
bench and was in private practice for three years in the early
1960s.
Department (Philosophy)
Although Judge Lodge may be a political conservative, it was
difficult for his interviewers to determine whether he is a
judicial conservative or whether he in fact has any judicial
philosophy. This is mainly because Judge Lodge, unless pushed,
was both unable and unwilling to discuss anything in his
interviews other than Idaho law. One interviewer described the
interview with Judge Lodge as sleep inducing. What useful
information the interviewers could get from Judge Lodge was not
particularly favorable. For instance, he said that the criminal
justice system works well and that any perception otherwise is
due to the media. He also said that judges should have some
sentencing discretion and he therefore is not a strong supporter
of the sentencing guidelines. Judge Lodge could not think of any
examples of judicial activism. When pressed, he finally
mentioned a judge who was almost impeached for particularly bad
temperament, thus equating temperament with activism. Judge
Lodge also could not come up with any Supreme Court Justice,
current or past, with whom he identifies. One interviewer
wondered whether Judge Lodge could even name a Supreme Court
Justice. In hypotheticals that he was able to discuss, Judge
Lodge often resorted to a balancing test. He said that he would
throw out an objective intelligence test used by either a
private or government employer because smart people who can pass
tests are not always capable of converting their intelligence
into good job performance. He also said that we have a living
Constitution that must be interpreted in light of ongoing
sociological change. Judge Lodge says there is definitely a
constitutional right to privacy that emanates from the 14th
Amendment, the Bill of Rights, and case law. The bottom line is
that Judge Lodge is completely and totally unfamiliar with the
federal court system and is not even close to being of circuit
court caliber.
- 4 -
State (Reputation)
Judge Lodge is known as an excellent and experienced trial judge
with a very good temperament. He is also known as a very solid
political conservative. Judge Lodge has been active in the
Republican Party and a strong Reagan backer over the years.
Judge Ryan, a Reagan appointee to the district court in Idaho,
says that Judge Lodge operates as a judge on the principle of
stare decisis. We are told by Chief District Judge Callister, a
Ford appointee, and Greg Bower, the Boise District Attorney, that
Judge Lodge would lean towards judicial restraint. The Canyon
County Sheriff describes Judge Lodge's judicial philosophy as
very fair, impartial, and balanced. He said that Judge Lodge
attempts to fall within the spirit of the law but in a workable
fashion. The Sheriff adds that Judge Lodge has "model" judicial
temperament and that he can not think of anybody better qualified
for the bench.
Confirmation
No major confirmation problems are anticipated.
- 5 -
GEORGE GRANATA
Background
George Granata, 42, has been a state district judge in Burley,
Idaho since 1977. He received a J.D. from St. Mary's University
Law School in 1972. After graduating law school, Judge Granata
was associated with the law firm of Church, Church & Snow in
Burley and was also a Cassia County Deputy Prosecuting Attorney
until 1975. At that time, he began serving as a lawyer
magistrate on a court with small claims civil jurisdiction and
criminal jurisdiction over traffic and misdemeanor cases. He was
reelected to that position once before he was appointed to the
district bench.
Department (Philosophy)
Judge Granata was ranked second to Mr. Hurlbutt by the
interviewers even though he explicitly rejects the founders and
totally caricatured an original meaning jurisprudence. Judge
Granata basically thinks we are looking to put a "Nixonite"
strict constructionist trial judge on the Ninth Circuit who is
anti-abortion and pro-death penalty. Judge Granata said that he
considers a statute's history more important than its words and
that he could be convinced by strong evidence of legislative
intent to render an interpretation of a statute that is
inconsistent with the plain meaning of its words. In his
defense, however, Judge Granata seemed genuinely concerned about
the process of judging and about judges who overstep their
bounds. Unfortunately, he was really unable to respond to
arguments in favor of an original meaning jurisprudence. Apart
from his own instincts and philosophy, which are more
conservative than liberal, he has no standard which he could
consistently apply as a judge. Therein lie seeds that could
possibly sprout into a very bad jurisprudence. One can see this
in the positions he took in his interviews. He criticized Roe
and Griswold but defended Skinner V. Oklahoma and Miranda. He
also defended the Supreme Court's decision to review the Runyon
case and said he would defend a Supreme Court decision which
narrowed the scope of the commerce clause but that the
incorporation doctrine is settled and should not be reconsidered.
He also had no problem in declaring that the due process clause
should be interpreted to bar arbitrary and capricious state
action. Judge Granata's best discussion was in the area of
discrimination, where he clearly believes very strongly in an
intent requirement.
- 6 -
State (Reputation)
Judge Granata comes from a small town in Idaho and is less
prominent than the other candidates. Apart from mentioning his
excellent reputation, none of the people to whom we spoke knew
Judge Granata.
Confirmation
No major confirmation problems are anticipated.
- 7 -
BLAKE HALL
Background
Blake Hall, 35, is a partner at the Idaho Falls law firm of
Anderson, Pike, and Bush, where he has a litigation practice. He
is also the Republican Party State Chairman and a member of the
Republican Party's Western States Chairman's Association. From
1980 to 1983, Mr. Hall was a partner at Ririe, Lee, Jenkins, and
Hall. He began practicing with that law firm as an associate in
1979. Mr. Hall received a J.D. from the George Washington
University Law Center in 1979. He is a past legislative
assistant for Senator McClure.
Department (Philosophy)
Mr. Hall does not yet have the necessary experience to go on the
circuit court. Although his interviews indicated that he is on
the right track, he has some way to go in fully developing his
judicial philosophy. Mr. Hall seems generally outraged by the
federal judiciary's usurpation of power from the other branches
and would like to go on the Ninth Circuit to help get it back on
the right track. He considers it very important to appoint
judges with the right philosophy. On the other hand, Mr. Hall
seems to have crammed for his interviews and one interviewer
found it difficult to get him involved in anything more than a
superficial discussion of, for instance, Dean Pound's concept of
social jurisprudence, which Mr. Hall had criticized. Mr. Hall's
discussion of most issues, including the right to privacy and the
role of precedent, was exactly what one would expect from an
intelligent and thoughtful judicial conservative but he was awful
in his discussion of disparate impact. He could not get away
from his argument that an objective job requirement could have no
rational basis. He never understood that the question was one of
intent. Mr. Hall finally came down supporting the notion that
statistics alone can support a finding of discrimination.
Although he may not continue to hold this view if he studied this
issue, it is a strong indication that his conservative judicial
philosophy, which is no doubt seriously held, has not yet gelled
and that Mr. Hall would be a much better circuit court candidate
some time in the future. He also looks younger than 35.
State (Reputation)
The judges to whom we spoke and the Boise District Attorney do
not know Mr. Hall. The Republican National Committeeman and
National Committeewoman, not surprisingly, speak very highly of
Mr. Hall. They particularly cite his mild temperament and his
dedication to his family. The Committeeman describes Mr. Hall's
- 8 -
philosophy as moderate to conservative while the Committeewoman
describes it as conservative. They also mention that Mr. Hall is
a very hard worker and that he has been a very strong supporter
of President Reagan.
Confirmation
Mr. Hall is only 35 years old.
- 9 -
TIMOTHY HOPKINS
Background
Timothy Hopkins, 52, received a J.D. from the George Washington
University Law School in 1963. While in law school, Mr. Hopkins
was assistant editor of the George Washington Law Review. Mr.
Hopkins has been in private practice ever since he graduated law
school. He is currently the senior partner of Hopkins, French,
Crockett, Springer & Hoopes in Idaho Falls, where he has a
general practice. Mr. Hopkins is active in the local community
and the bar.
Department (Philosophy)
Mr. Hopkins' buzzword is "traditionalism." He wants to preserve
and maintain the system, for which he has high regard. This
translates into a slavish regard for precedent. Mr. Hopkins
said that he does not have a judicial philosophy and that judges
can, for the most part, decide cases based on precedent. His
practice has been primarily confined to the state courts. As a
lawyer, Mr. Hopkins values predictability and accountability, and
he said he would continue to hold these values as a federal
judge. Mr. Hopkins is yet another individual who believes that
"there comes a time" when judges have no alternative but to
change the law. Since he has no philosophy, it is presumably he
who determines this time. Mr. Hopkins explicitly acknowledges a
law making role for the Supreme Court. He said that he finds it
incredible that lawyers who are given the chance to appear before
the Supreme Court and be a part of "law making" are often not
prepared. Also, in responding to a hypothetical on the cruel and
unusual punishment clause, Mr. Hopkins said that he "would leave
it to the Supreme Court to amend the Constitution." Mr. Hopkins
said that he is satisfied with the evolutionary change from the
Warren Court because there are many threads of consistency. He
likes Justice O'Connor because he feels that it was a politically
savvy move and about time to put a woman on the Supreme Court.
Mr. Hopkins is the most intelligent of the candidates, but he is
probably also the most liberal.
State (Reputation)
Blake Hall, the Republican State Chairman and himself a candidate
for this position, says that Mr. Hopkins is the most liberal of
the candidates. The Republican National Committeeman, Dick
Bauer, says that Mr. Hopkins is more liberal than most
Republicans in the area (although he is not liberal on an
absolute scale), and there would be surprise over his nomination
- 10 -
for that reason. Mr. Hopkins has a good reputation in the bar
among those who know him but he is not well known.
Confirmation
Mr. Hopkins is perceived to have taken anti-environment positions
solely to benefit his own property.
- 11 -
THOMAS NELSON
Background
Thomas Nelson, 51, is a resident attorney in the Boise office of
the Twin Falls law firm of Nelson, Rosholt, Robertson, Tolman &
Tucker. His practice emphasizes public utility law and water
rights. Before joining his present firm in 1979, Mr. Nelson
spent fourteen years with the Twin Falls law firm of Parry,
Robertson, and Daly. Mr. Nelson received an LL.B. from the
University of Idaho in 1962. From 1963 to 1965, he was Assistant
Attorney General and later Deputy Attorney General of Idaho, in
which capacity he represented various state agencies and worked
on criminal matters. Mr. Nelson is a fellow in the American
College of Trial Lawyers and is active in the bar and local
community.
Department (Philosophy)
Mr. Nelson is so precedent bound that it is difficult to discuss
anything else with him. He described his philosophy as "middle
of the road to conservative,' distinguishing one with a
"conservative" philosophy, such as Chief Justice Rehnquist, as
somebody who reads "only the words of the Constitution and never
goes further." Mr. Nelson said that it is a mistake for the
Supreme Court to review any precedent unless its rule has become
unworkable or has led to "impossible results." He said that we
can live with a violation of the law (unless the circumstances of
it are severe) better than we can live with change in the law.
Mr. Nelson volunteered that he has always been a fan of Justice
Kennedy's but that he may have to temper his enthusiasm since
Justice Kennedy voted to reconsider Runyon. While Mr. Nelson's
temperament is impressive, he never referred to the Constitution
in any hypothetical and it is not clear that he thinks it has
anything to do with judging. He has no problem with the notion
of a living Constitution, as he demonstrated in his answer to a
cruel and unusual punishment hypothetical. In the area of
criminal law, Mr. Nelson said that he does not oppose the recent
inroads on the exclusionary rule since there has not been an
outright reversal. Mr. Nelson was awful on a question of
statutory interpretation and, although he mentioned that he
believes intent should be a sine qua non of discrimination for
private employers, he believes that more "sensitivity" could be
required of government employers.
State (Reputation)
Mr. Nelson seems to be well respected in the Idaho community.
Judge Callister, the Chief Judge in the District, considers Mr.
- 12 -
Nelson a problem solver as opposed to a problem creator. The
judge also mentions that Mr. Nelson is respected throughout the
state and that he has never been involved in an "activist case."
Judge Ryan, the Reagan appointed judge in the district, describes
Mr. Nelson's philosophy as moderate to conservative.
Confirmation
Mr. Nelson specializes in representing Idaho Power, an unpopular
client among environmentalists.
- 13 -
CBG/LSL:1ckm MD IMP
CBGray
LSLiberman
Chron
THE WHITE HOUSE
WASHINGTON
May 22, 1989
Dear Judge Burnett:
Thank you for your letter recommending C. Timothy Hopkins for
appointment to the United States Court of Appeals for the Ninth
Circuit. Recommendations by individuals who are familiar with a
candidate's personal and professional qualifications are an
important factor in the deliberations of the President's Federal
Judicial Selections Committee. Thus, I can assure you that your
suggestions will be given thoughtful consideration during the
selection process.
Sincerely,
C. Boyden Gray
Counsel to the President
The Honorable Donald L. Burnett, Jr.
Judge
Idaho Court of Appeals
537 W. Bannock Street
Boise, Idaho 83720
be: MURRAY DICKMAN
MARK PAOLETTA
ID# 030466
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
DATE RECEIVED: APRIL 26, 1989
NAME OF CORRESPONDENT: THE HONORABLE DONALD L. BURNETT JR.
SUBJECT: RECOMMENDS C. TIMOTHY HOPKINS OF IDAHO FALLS
FOR APPOINTMENT TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
ACTION
DISPOSITION
ROUTE TO:
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ORG 89/04/26
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MARK PAOLETTA
RSI 89/04/26
C 89/04/26
REFERRAL NOTE:
LANNY GRIFFITH
RSI 89/04/26
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Cuofc
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C'Boyden m Shiffer
30466
STATE OF IDAHO
COURT OF APPEALS
cc
DONALD L. BURNETT, JR.
JUDGE
537 W. Bannock Street
Boise, Idaho 83720
(208) 334-5168
April 17, 1989
The Honorable George Bush
President of the United States
The White House
Washington, D.C. 20500
Dear Mr. President:
The Department of Justice is evaluating candidates for nomina-
tion to the United States Court of Appeals for the Ninth Circuit.
I respectfully invite your personal attention to C. Timothy Hopkins
of Idaho Falls.
Tim Hopkins is a superb craftsman of the law and a
distinguished statesman for the legal profession. His peers have
elected him to the Board of Commissioners of the Idaho State Bar
and to the Board of Directors of the Idaho Law Foundation.
Recently, he served on a blue-ribbon committee that prepared an
appellate practice manual for Idaho lawyers. He was selected to
author the chapter on writing effective briefs and to serve as a
co-editor of the entire publication. His scholarship and graceful
command of language made him the obvious choice.
The Department of Justice will find many other examples of Tim
Hopkins' outstanding achievements as a lawyer and as a public
citizen. I can think of no other candidate whose grasp of
substantive law, sense of fairness, and unselfish commitment to
public service are so widely admired.
This letter is wholly unsolicited although I have, of course,
received Mr. Hopkins' permission to send it. If he is appointed
to the Ninth Circuit, Tim Hopkins will be an anchor of restrained,
balanced judgment in the federal courts, and an enduring credit to
your Administration.
Sincerely,
Donald & Burneth
Donald L. Burnett, Jr.
MD/MP
CBG/LSL: 1ckm
CBGray
THE WHITE HOUSE
LSLiberman
Chron
WASHINGTON
May 22, 1989
Dear Judge Gilroy:
Thank you for your letter recommending Robert E. Jones for
appointment to the United States Court of Appeals for the Ninth
Circuit. Recommendations by individuals who are familiar with a
candidate's personal and professional qualifications are an
important factor in the deliberations of the President's Federal
Judicial Selections Committee. Thus, I can assure you that your
suggestions will be given thoughtful consideration during the
selection process.
Sincerely,
C. Boyden Gray
Counsel to the President
The Honorable Patrick D. Gilroy
Presiding Judge
Circuit Court of Oregon
Fifth Judicial District
Clackamas County Courthouse
Oregon City, Oregon 97045
be: MURRAY DICKMAN
MARK PAOLETTA
ID# 035177
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
FG053
DATE RECEIVED: MAY 10, 1989
NAME OF CORRESPONDENT: THE HONORABLE PATRICK D. GILROY
SUBJECT: RECOMMENDS ROBERT E. JONES FOR APPOINTMENT
TO POSITION ON THE FEDERAL DISTRICT COURT OF
THE NINTH CIRCUIT
ACTION
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ROUTE TO:
ACT
DATE
TYPE C COMPLETED
OFFICE/AGENCY
(STAFF NAME)
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ORG 89/05/10
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MARK PAOLETTA
RSI 89/05/10
C 89/05/10
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BILL CANARY
RSI 89/05/10
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35177
CIRCUIT COURT OF OREGON
they
FIFTH JUDICIAL DISTRICT
CLACKAMAS COUNTY COURTHOUSE
OREGON CITY, OREGON 97045
C
May 4, 1989
PATRICK D. GILROY
CIRCUIT JUDGE
ee
COURTROOM 1
PERSONAL
(503) 655-8687
President George H. Bush
The White House
Washington, DC 20500
Re: Justice Robert E. Jones: Proposed Appointment to the
Federal District Bench
Dear President Bush:
Today's paper brought me the news that the Honorable Robert
E. Jones, Associate Justice of the Oregon Supreme Court, is being
recommended to you by both Senator Hatfield and Senator Packwood
for appointment next fall to fill a vacancy on the Federal
District Court for the Ninth Circuit.
I have been a member of the bar for more than 28 years and
for the last fourteen years have served as a circuit court judge.
Throughout that period of time I have observed Justice Jones
function as a trial lawyer, trial judge and Associate Supreme
Court Justice. He has performed admirably in all of those
capacities and has, as well, established an excellent scholastic
reputation by reason of his fine work as a law professor at the
Lewis and Clark School of Law.
Justice Jones would be an outstanding addition to the
Federal District Bench. He is highly regarded by the bench and
bar of Oregon and is, by background and experience, uniquely
qualified for a position on the Federal Court.
I join our distinguished Senators in recommending Justice
Jones for appointment to the Federal District Court for the Ninth
Circuit.
Patrick Very truly D. Gilroy yours, Gibory
Presiding Judge
PDG: sh
CC:
The Honorable Richard Thornburgh
The Honorable Mark 0. Hatfield
The Honorable Robert Packwood
THE WHITE HOUSE
WASHINGTON
<A9
gerald Schroeder - Idahs
THE WHITE HOUSE
WASHINGTON
CAg
Phelip Johns
dlask / any klenfeld?
Howaii:- Blanky ?
CA9
NINTH CIRCUIT
Senator McClure has recommended four candidates for our
consideration. Two, Duff McKee and Gerald Schroeder, are State
trial court judges. The other two, Thomas Nelson and Timothy
Hopkins, are private practitioners. Judge Schroeder appears to
be the only one who should be considered further.
Judge Schroeder has been a trial judge for the last twelve
years. In response to the Justice Department's request for
materials, he provided six opinions and two articles. From this
limited sample it is difficult to come to any definite
conclusions. The opinions are mostly good, although two of them
are open to criticism. In one, he refused to enforce a decision
by the Idaho Department of Health and Welfare to recoup medicaid
funds from a nursing home that had not reported the level of care
of its patients in the manner required by regulation. One of the
two grounds he relied on (that the Department had incorrectly
believed it lacked discretion not to recoup) was quite plausible,
but the other (basically, that recovery would be unjust) was not.
The other opinion involved the firing of a Chief of Campus
Security by a State School. Judge Schroeder first seems to have
stretched the definition of employees outside the protection of
the Idaho Civil Service laws to avoid their application to the
plaintiff, and then reviewed the reasons for the decision to fire
him in a manner that essentially revisited the entire question
afresh, though he ultimately upheld it.
Judge Schroeder's articles are cautious but pretty good.
One indicates considerable skepticism about the Warren Court's
refashioning of the juvenile justice system as well as about the
general proposition that any justice system can solve the problem
of juvenile delinquency. The other examines the relationship
between technology and the Constitution, and criticizes the
analogy between the Constitution and a living organism or a
machine. Instead, he argues, "It is the written form of our
social countract which we reinterpret. If we do that well we
abide by the contract envisioned by the founders. If we do it
poorly, we ignore the contract." The article also subtly
criticizes Roe V. Wade.
On balance, Judge Schroeder should be considered further,
depending on what other candidates can be found in Idaho.
Judge McKee has been on the bench for four years. In
response to the Justice Department's request for materials, he
sent in his ten favorite opinions. Three of these are quite
problematic. In one, he ruled that notwithstanding a statute
forbidding the counting of time spent on parole toward completion
of a recommitted parole violator's sentence, that time had to be
counted if the parole violator was again paroled, thus requiring
the parole violator's permanent release. In another, he excluded
evidence obtained pursuant to a search warrant on concluding that
the warrant was insuficiently precise and that the search
therefore violated the Fourth Amendment. The lack of
particularity was due to the omission of the street name,
although the warrant contained the number and a description of
the premises. (McKee also noted that "the search warrant does
not place the premises in Ada County, or even the State of
Idaho, leading one to wonder if in the future, warrants in the
Fourth Judicial District of Idaho will have to specify "the
United States, the Planet Earth, the Milky Way, the Universe. ")
He also refused to apply the "good faith" exception to the
exclusionary rule, even though it was devised precisely to allow
use of evidence obtained in technical but good faith violation of
the Fourth Amendment. Finally, in the third opinion, he found
that a plaintiff could sue those involved in the peer review
process that resulted in his dismissal from a hospital despite a
statute that provided that participation in that process "shall
not subject any person
to any liability or action for money
damages or other legal or equitable relief. " McKee concluded
that the plaintiff had a right to "judicial review" separate from
the availability of any relief he might obtain from that review.
These three opinions would likely be sufficient cause for
rejecting Judge McKee even if they were part of a random sample
of his work. That he selected them from his corpus as three of
his favorites seems dispositive.
Thomas Nelson and Timothy Hopkins were considered by the
Justice Department during the Reagan administration. From the
descriptions of their views that resulted from that
consideration, they do not appear to satisfy President Bush's
insistence on judges who will "interpret the Constitution, not
legislate from the bench. "
CA9
CADC.
CAROLYN B. KUHL
Business Address:
Home Address:
Munger, Tolles & Olson
1509 Lachman Lane
355 South Grand Avenue
Pacific Palisades, CA 91604
Thirty-Fifth Floor
Telephone: (213) 459-8473
Los Angeles, CA 90071
Telephone: (213) 683-9121
LEGAL EMPLOYMENT:
Partner, Munger, Tolles & Olson, Los Angeles, California
September, 1986 - Present
Civil business litigation in federal and state court including
defense of government contractors in matters involving the
False Claims Act, defense of major health insurer in first
party bad faith litigation, litigation involving employment
disputes, and various contract and tort actions. Advice and
analysis in connection with lawsuits and legislative matters
involving the U.S. Department of Justice.
Deputy Solicitor General, U.S. Dept. of Justice
November, 1985 - July, 1986
Responsibility for briefing and arguing cases before the United
States Supreme Court and oversight of the government's
appellate litigation in various areas. Served as Acting
Solicitor General when the Solicitor General was recused or
absent.
Deputy Assistant Attorney General, Civil Division, U.S. Dept. of
Justice
June, 1984 - October, 1985
Supervised Federal Programs Branch (90 attorneys) as well as
Appellate Staff (see below). Responsibility for all civil
trial litigation (affirmative and defensive) involving federal
agency programs, including cases challenging the legality or
constitutionality of agencies' actions or regulations.
October, 1982 - October, 1985
Supervised Appellate Staff and Regulatory and Legislative Staff
of the Civil Division (40 attorneys). Responsibility for all
civil appellate litigation handled by the Department of
Justice.
LEGAL EMPLOYMENT: (continued)
Special Assistant to the Attorney General of the United States
July, 1981 - October, 1982
Staff work for the Attorney General including general oversight
of the activities of several Department components; speeches
and other public appearances on behalf of the Department of
Justice.
Associate, Munger, Tolles & Rickershauser
November, 1978 - July, 1981
Experience in antitrust counseling and litigation, securities
litigation, defense of major class action suit involving
commodity futures trading, general civil litigation in federal
and state court.
Law Clerk to the Honorable Anthony M. Kennedy, United States Court
of Appeals for the Ninth Circuit
August, 1977 - September, 1978
EDUCATION:
Law School
Duke University School of Law, J.D. 1977
Order of the Coif
Duke Law Journal: Editorial Board; Outstanding Editorial Board
Member Award, 1977
College
Princeton University, A.B. Cum Laude in Chemistry 1974
Certificate in Program in Science in Human Affairs
Secondary School
St. Joseph's Academy, St. Louis -- Valedictorian 1970
PROFESSIONAL ACTIVITIES AND BAR MEMBERSHIPS:
Member of California, Missouri, and District of Columbia Bars
Member, American Law Institute
Public Member, Administrative Conference of the United States
Member, Board of Visitors, Duke Law School
Fellow, Private Adjudication Foundation
PERSONAL:
Married to William F. Highberger
Partner at Gibson, Dunn & Crutcher
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SELECTED SPEECHES AND TESTIMONY:
Presentation at American Bar Association Annual Meeting on
"Prosecuting and Defending Lawsuits under the False Claims
Act", August 8, 1988
Address to Indiana University School of Law Federalist Society,
concerning Separation of Powers and the Qui Tam Provisions of
the False Claims Act, March 26, 1988
Testimony before the Senate Judiciary Committee in support of the
nomination of Anthony M. Kennedy to be Associate Justice of
the United States Supreme Court, December 17, 1987
Address as part of Colloquium on Improving Dispute Resolution:
Options for the Federal Government, June 1, 1987
Testimony before the Subcommittee on Administrative Law and
Governmental Relations of the House Judiciary Committee,
concerning HHS Policy of Acquiescence, July 25, 1985
Testimony before the Subcommittee on Courts, Civil Liberties, and
the Administration of Justice of the House Judiciary
Committee concerning the Reauthorization of the Equal Access
to Justice Act, April 30, 1985 and March 14, 1984
Testimony before the House Committee on Government Operations,
concerning Government Reorganization H.R. 6225 (legislative
veto), September 20, 1984
Testimony before the Senate Finance Committee, concerning Social
Security Administration's Nonacquiescence Policy, January
25, 1984
Testimony before the House Committee on Veterans' Affairs,
concerning Judicial Review of Veterans' Claims, July 21, 1983
Presentation at the Aspen Institute on "Use of Alternative
Dispute Resolution in Contract Disputes with the Government",
program sponsored by Center for Public Resources,
June 24, 1983
Presentation to the Council of the Litigation Section of the
American Bar Association, October 9, 1982
Panelist for Open Forum on Judicial Activism sponsored by Phi
Beta Kappa Association of Chicago, June 18, 1982
Address to the American Judges Association Mid-Year Conference,
April 23, 1982
Testimony before the Subcommittee on Criminal Law of the Senate
Judiciary Committee, on A Bill to Eliminate the Bar of the
Act of State Doctrine in Certain Cases, September 14, 1981
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