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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Judges
(3 of 9)
Box: 30
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
julyes
PROMOTING THE PRESIDENT'S POLICIES
THROUGH LEGAL ADVOCACY: AN ETHICAL
IMPERATIVE OF THE GOVERNMENT ATTORNEY
Before the
Federal Bar Association
Address by: Bruce E. Fein
Vista International Hotel
1400 M Street
Washington, D.C.
May 13, 1983
PROMOTING THE PRESIDENT'S POLICIES
THROUGH LEGAL ADVOCACY: AN ETHICAL
IMPERATIVE OF THE GOVERNMENT ATTORNEY
The Watergate scandal a decade ago precipitated a widespread
examination of the ethical norms of government attorneys. Dismay
was expressed that so many government lawyers were implicated in
some type of Watergate illegality or impropriety. Much
celebrated discussion occurred over the causes of attorney
wrongdoing, and several pieces of legislation emerged in the
aftermath of Watergate, including the Ethics in Government Act of
1978. 1/
The Act imposes extensive financial disclosure requirements
on high level government attorneys and other federal
officials, creates an Office of Government Ethics,
establishes broad disqualification requirements applicable to
former officers and employees of the federal government, 4/ and
mandates a low ceiling on outside earned income. 5/ Relatedly,
there has been acrimonious debate and litigation over whether
ethical norms should require disqualifying an entire law firm
from representing a client in litigation if one of the firm's
members is personally disqualified because of prior involvement
over the matter in dispute as a government attorney. A consensus
seems to be crystallizing around a rule that would permit
representation by the law firm if a so-called Chinese wall is
constructed between the disqualified erstwhile government lawyer
and the remainder of the law firm.
-2-
Generally neglected from these omnibus discussions over the
ethics of lawyers, however, has been an exploration of the duty a
government attorney in the Executive Branch owes to his client,
the incumbent President. I submit that ethical imperatives
derived from our constitutional system of representative
government and separation of powers obligate the government
attorney to devote virtually unreservedly his legal talents and
insights towards advancing the policies of the President through
legal advocacy.
The Executive Branch employs thousands of attorneys, most
of whom are insulated from removal after a change of
Administration because of constitutional 8/ or statutory
protections and because of practical limits on recruitment of new
attorneys. I do not deplore the impressive array of rights
afforded government attorneys against discharge, transfer, or
demotion. But these rights create a corollary responsibility to
provide unremitting assistance through legitimate legal argument
to the incumbent Administration in furtherance of the policies
championed by the President. This ethical canon echoes one
applicable to the private attorney, which instructs a lawyer to
advocate any construction of the law favorable to his client that
is not frivolous. 10/ If the ethical obligation of the
government attorney is not faithfully discharged, then the
electoral system is mocked, the President's ability to implement
his policies could be stymied, and unelected lawyers in the
Executive Branch will be censurable for disdaining the will of
the people.
-3-
As President Franklin Roosevelt declared:
The essential democracy of our Nation
and the safety of our people depends
upon.
lodging [power] with those whom
the people can change or continue at
stated intervals through an honest and
free system of election. 11/
De Tocqueville observed over 150 years ago, that in America,
virtually every political question is ultimately transformed into
a legal one. 12/ That canonical utterance has withstood the test
of time, and perhaps should be crowned as an eternal verity of
American political science. Contemporary federal caseload
statistics demonstrate prodigious increases in litigation in
recent years, 13/ partly attributable to widespread attorney fee
awards 14/ and the discovery of innumerable new
15/
statutory and constitutional rights,
and the desuetude of
doctrines of standing, 16/ mootness, 17/ ripeness 18/ and
political questions. 19/. Equally significant is the fact that
the statistics reveal an avalanche of litigation assailing
government policy. 20/ A President must be successful in
litigation defending his actions or initiatives if he is to have
a significant role in shaping and implementing public policy.
A brief enumeration of the policies or programs of the
Reagan Administration that have been or are being challenged in
court is illustrative of the centrality of legal advocacy to the
vindication of a President's agenda. Litigation has bedevilled
Administration policy concerning tuition tax credits, 21/
voluntary prayer in schools, 22/ abortion, 23/ mandatory busing,
-4-
24/ color and gender-blind laws, 25/ federalism, 26/ the
regulatory scope of statutes such as $504 of the Rehabilitation
Act of 1973, 27/ and Title IX of Higher Education Act
Amendments, 28/ the use of cost/benefit analysis to establish
standards for employee exposure to toxic substances, 29/
prosecution of draft registration violators 30/, and curtailment
of government aid to students failing to show compliance with
draft registration rules, 31/ Davis-Bacon Act prevailing wage
standards, 32/ the obligation of parental notification when
minors receive prescription contraceptives from family planning
centers that receive federal funds, 33/ oil and gas leasing on
government property, 34/ the award of attorney fees to plaintiffs
unsuccessful in challenging government action, 35/ the
legislative veto, 36/ and law enforcement safequards against
illegal aliens 37/ or frivolous claims of asylum. 38/
At times, prevailing legal doctrines must be modified,
distinguished, or even overruled to accommodate or facilitate
many of a President's policy objectives. When Franklin Roosevelt
acceded to the Presidency in March of 1933, the cornucopia of New
Deal legislation and programs that he trumpeted could be
effectuated only by a radical alteration of established
constitutional jurisprudence lionizing freedom of contract, 39/
property rights, 40/ and State sovereignty. 41/ Despite
formidable constitutional doubts, President Roosevelt
orchestrated enactment of a host of laws resting on conceptions
of Congressional power under the Commerce and Spending Clauses
and the Tenth Amendment that had recently been repudiated by the
-5-
Supreme Court. 42/ Many of Roosevelt's major policy initiatives
were initially denounced by the Supreme Court as
unconstitutional. 43/ On so-called "Black Monday," May 27, 1935,
the High Court unanimously invalidated the National Industrial
Recovery Act, 44/ and the Frazier-Lemke Act, the latter designed
to aid farmers with mortgages in default, 45/ and repudiated the
President's asserted constitutional authority to remove members
of independent agencies. 46/
Roosevelt, the Attorney General, and government attorneys,
however, did not renounce the New Deal policy goals despite these
resounding judicial rebuffs. The Executive Branch collaborated
in marshalling legal arguments distinguishing or urging
modification or overruling of Supreme Court precedents in a quest
to obtain a jurisprudence that would countenance New Deal
programs. 47/ As then Attorney General Robert Jackson noted, his
duty was not to revere the Supreme Court, but to point out its
failings or errors where appropriate. 48/
Perhaps inspired by Theodore Roosevelt's boast that although
he did not know much law, he knew how to put the fear of God into
judges, Franklin Roosevelt unveiled his ill-received "Court
Packing" plan in April of 1937. 49/ Shortly thereafter, moved at
least in part by the legal advocacy of government attorneys, the
Supreme Court commenced the overruling of scores of cases that
stood as obstacles to the effectuation of the New Deal. 50/ In
sum, President Roosevelt's New Deal would have been stillborn if
government attorneys refused to advocate with skill and
imagination a dramatic change in prevailing constitutional
doctrines.
-6-
President Lincoln also confronted anguishing legal obstacles
to his policy regarding slavery and the citizenship rights of
blacks. The odious Dred Scott 51/ decision of 1857 held that
Congress could not outlaw slavery in the territories, and that
blacks were disqualified from U.S. citizenship. Despite serious
legal questions, Lincoln signed a bill in 1862 prohibiting
slavery in the territories, 52/ issued the Emancipation
Proclamation, 53/ and allowed blacks to obtain federal patents,
visas, and to be masters of vessels engaged in the coasting
trade, although pertinent statutes imposed a requirement of U.S.
citizenship. 54/
The President and his subordinates, of course, cannot defy
court decrees. Moreover, the President should not insist on
undertaking policy initiatives where there is no plausible
likelihood of surmounting judicial review within the reasonably
foreseeable future. But such occasions seldom, if ever, arise.
As the sage Justice Holmes observed, the law is not an unchanging
brooding omnipresence in the sky. 55/ History demonstrates that
legal doctrines are continuously in flux, may change course
abruptly, and are frequently riddled with ambiguity.
The Supreme Court has overruled over 230 of its own
precedents; 56/ in recent memory, at the urging of the federal
government, the Court overruled Plessy V. Ferguson, 57/ a
decision endorsing the pernicious separate-but-equal doctrine
tolerating racial discrimination, and discarded 58/ the doctrine
of Colegrove V. Green, 59/ which instructed federal courts to
-7-
abstain from deciding legislative apportionment suits on the
ground that they raised nonjustiable political questions.
In addition, numerous areas of the law today are plagued
with incertitude because of infelicitous or opaque statutory
language, 60/ and cascasdes of equivocal Supreme Court decisions
addressing contentious issues such as affirmative action, 61/
gender discrimination, 62/ mandatory busing, 63/ government aid
to nonpublic schools, 64/ abortion, 65/ commerical speech, 66/
the death penalty, 67/ Fourth Amendment strictures against
unreasonable searches and seizures, 68/ regulation of toxic
substances, 69/ and patents. 70/ Uncertainty, inconsistencies,
and error in the case law are likely to become more pronounced in
the future. The caseload burden of federal courts sharply
curtails time for deliberation and clarity of exposition, 71/ and
many contemporary federal judges perceive caseload processing as
opposed to correct interpretation of statutes and the
Constitution as the touchstone of judicial emminence and
kudos. 72/
Contemporary features of the adjudicatory process and the
legal topography underscores the important advocacy role of the
government attorney in the evolution of legal doctrines
sympathetic to the policies of the President. A reasonably
skilled government attorney can ordinarily assemble a reasonable
legal case for sustaining Executive Branch endeavors. The
attorney is ethically obligated to do so, unless he encounters
the improbable situation where the best legal arguments are
-8-
frivolous, that is, they have no likelihood of acceptance by the
courts in the reasonably foreseeable future.
The President is, as a practical matter, elected by the
people. He is thereby constitutionally endowed with authority to
seek to advance his public policy preferences. The President's
policies may find expression in proposed legislation, the
issuance of rules or regulations, law enforcement strategies or
priorities, or unilateral actions regarding foreign policy or
national defense. The Constitution, of course, does not
guarantee the President success in his policy initiatives.
Congress may refuse to pass legislation or may nullify by statute
a rule or regulation of the Executive Branch, and courts may hold
that actions of the Executive Branch are without legal
authority. The President is entitled, however, to the best legal
advocacy of government attorneys devoted to shaping the evolution
of legal doctrines that will sustain the President's programs and
policy objectives. Otherwise, the President's constitutional
powers will be blunted, and the will of the electorate
thwarted.
Within the Executive Branch, the government attorney is
emphatically a servant of the President. Neither the
Constitution nor the electorate has entrusted the government
attorney with an independence to determine what policies are
enlightened or advance the cause of justice, and to dedicate his
legal talents to furthering his personal public policy desires.
The government attorney should comprehensively research legal
issues, and apprise his superiors of the legal risks of
-9-
proceeding with a particular policy gambit. If a decision is
made to proceed notwithstanding legal uncertainties, however,
then the government attorney is ethically obligated to work
unstintingly in fashioning legal arguments to uphold the
policy. In some instances, this may require the construction of
arguments for overturning judicial precedents, even those of
recent vintage. Government attorneys did so with persistence and
ultimate success during the Presidential tenure of Franklin
Roosevelt.
The Supreme Court, it should be noted, has overruled major
cases with lightening speed, as occurred regarding decisions
addressing the constitutionality of legal tender
laws, 73/ the compulsory flag salute for public school pupils,
74/ and taxes on religious pamphletting. 75/ The Court has also
overruled precedents of venerable age; it held in Erie Railroad
V. Tompkins 76/ that the century-old decision in Swift V. Tyson
77/ must be overruled because it unconstitutionally empowered
federal courts to make general federal common law in disputes
between citizens of different states.
Thus, the discovery by a government attorney of precedent
that semingly would condemn a Presidential policy does not ordain
the conclusion that no responsible legal argument can be
assembled to vindicate the policy. To the contrary, in most such
situations, rational reasons can be adduced for modifying or
reversing the adverse precedent, or distinguishing it, in order
to effectuate the President's policy goal. The government
attorney is ethically bound to develop when necessary plausible
-10-
arguments for altering or overturning existing case law. This
duty is comparable to the ethical norm governing private
attorneys that endorses advocacy of any non-frivolous
construction of law favorable to the client, including
constructions dependent on modification or reversal of existing
law, without regard to the attorney's professional opinion as to
the likehood that the construction will ultimately prevail. 78%
If a government attorney cannot ungrudgingly adhere to the
ethical imperative requiring promotion of the President's
policies through legal advocacy, then he might seriously consider
voluntary resignation from the Executive Branch.
I wish to reiterate that this ethical imperative does not
require unthinking or slavish fealty to a President's public
policies. If a government attorney, after thorough and carefull
deliberation, concludes that no legal theory supporting an
Executive Branch policy can be elucidated that has any
possibility of acceptance by the courts in the reasonably
foreseeable future, then there is no duty to defend the legality
of the policy. This duty of Executive self-restraint is an
important cornerstone of the Constitution's separation of
powers.
The Constitution generally entrusts the ultimate
determination of the legality of Executive Branch action to the
Supreme Court. A Supreme Court decree overturning government
action in a particular case would be virtually toothless as a
check against Executive Branch abuses, however, if the Executive
could flout the rationale of the decision and undertake action
-11-
identical to that held unlawful, when no credible argument can be
made that the High Court would reconsider its decision and uphold
the action if an appropriate case were presented. Without such
self-restraint, the Executive could in bad faith exploit the
inevitable delays in the judicial process to continue wholesale
implementation or enforcement of illegal policies or programs.
The constitutionally envisioned role of the Supreme Court as a
check against Executive power would thereby be reduced to a mere
shadow. Executive self-restraint is as central to vindicating
the intent of our constitutional architects as is judicial self-
restraint.
The ethical imperative of the goverment attorney traceable
to our constitutional system of representative government is at
variance with Ethical Canon 7-14 of the American Bar
Association's Code of Professional Responsibility. That canon
exhorts the government attorney to refrain from instituting or
continuing litigation that is "obviously unfair," to seek
"justice," and to desist in civil or administrative proceedings
from bringing about "unjust settlements or results." The
concepts of fairness and justice that are intended to inform the
government attorney in complying with this norm are those
personal to the attorney. Fairness and justice, however, are
elusive concepts. A government attorney's concept of fair or
just public policy may diverge substantially from that held by
the President or the attorney's other superiors in the Executive
Branch. Thus, EC 7-14 seems to endow a government attorney with
a right to refuse to support a broad spectrum of legitimate
-12-
Executive Branch programs because he believes that they are
unfair or unjust. 79/ I do not believe any ethical canon of the
ABA or otherwise should so enfeeble the Executive Branch, or
place the personal views of a government attorney above those of
the President. Proposed changes in the Code of Professional
Responsibility are in accord with this belief. 80/
In conclusion, the government attorney must both understand
and adhere to the ethical imperative of promoting the President"s
policies to avoid constitutional malfunctioning and to display at
decent respect for the outcome of Presidential elections. The
imperative stems from the constitutional right of the people to
self-government, and to control the course of public policy
through the exercise of the franchise. The understudied subject
of the government attorney's ethical duties to his client can
only profit from greater scrutiny and colloquy. I encourage your
participation in the dialoque.
FOOTNOTES
1. P.L. 95-521, 92 Stat. 1824
2. Id., Title I, codified at 2 U.S.C. §701; Title II, codified at 5 U.S.C.
app.; Title III, codified at 20 U.S.C. app.
3. Id. , Title IV, codified at 5 U.S.C. app.
4. Id. 3 Title V, codified at 5 U.S.C. $207.
5. Id. Title II, §210, codified at 5 U.S.C. app.
6. See Armstrong V. McAlpin, 625 F.2d 433. (2nd Cir. 1980), vac. 449 U.S.
1106 (1981); See also: the Chinese Wall Defense to Law Firm Disqualification,
128 U. Penn. L. Rev. 677 (1980); ABA Model Rule of Professional Conduct 1.11,
June 30, 1982 draft. But see Westinghouse Electic Corp. V. Kerr-McGee Corp.,
580 F.2d 1311 (7th Cir.), cert. denied, 439 U.S. 955 (1978); Fund of Funds,
Ltd. V. Arthur Andersen & Co., 567 F.2d 225 (2nd Cir. 1977).
7. As of Oct. 31, 1981, Office of Personnel Management statistics indicate
that 17,118 attorneys were employed throughout the government.
8. Branti V. Finkel, 445 U.S. 507 (1980); Elrod V. Burns, 427 U.S. 347
(1976).
-2-
9. 5 U.S.C. §§ 2301, (Merit System Principles), 4301 (Performance Appraisal),
7511 (adverse action).
10. Canon EC 7-4, ABA Code of Professional Responsibility.
11. The Inaugural Addresses of the American Presidents, 238 (D. Lott., ed.
1961)
12. De Tocqueville: Democracy in America.
13. In 1975, 16,658 appeals were commenced in the Courts of Appeal, as
compared with 27,946 in 1982. In the district courts, in 1975, 117,320 civil
cases were filed as compared with 206,193 in 1982. 1982 Annual Report of the
director, Administrative Office of the U.S. Courts. Similarly, in the 1975
Term, 4761 were on the docket of the Supreme Court, as compared with 5311 on
the Court's 1981 docket.
14. Rajender V. Univ. of Minnesota, 546 F.Supp. 158 (D. Minn. 1982).
15. For example, rights to abortion were created in: Roe V. Wade, 410 U.S.
113 (1973); Doe V. Bolton 410 U.S. 179 (1973); Planned Parenthood of Central
Mo. V. Danforth, 428 U.S. 52 (1976); Bellotti: V. Baird, 443 U.S. 622 (1979);
new First Amendment solicitude was granted to commercial speech in: Bigelow
V. Va., 421 U.S. 809 (1975); Virginia State Bd. of Pharmacy V. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976); Bates V. State Bar of Arizona,
433 U.S. 350 (1977); Con Edsion V. Public Serv. Comm'n 447 U.S. 530 (1980);
-3-
Central Hudson Gas & Elec. Corp. V. Public Service Comm'n, 447 U.S. 557
(1980); Metromedia, Inc. V. City of San Diego, 453 U.S. 490 (1981); In the
Matter of R
M. J.
, 102 S. Ct. 929 91982); implied private rights of
action were created under federal regulatory statutes in: Merill Lynch Pierce
Fenner & Smith V. Curran, 50 U.S.L.W. 4457 (1982); Cannon V. Univ. of Chicago,
441 U.S. 677 (1979); and a vast array of procedural due process rights were
created, see, for example, Mephis Light, Gas & Water Div. V. Craft, 436 U.S. 1
(1978).
16. U.S. V. SCRAP, 412 U.S. 669 (1973).
17. Roe V. Wade, 410, U.S. 113 (1973).
18. Duke Power Co. V. Carolina Environmental Study Group,
98 S. Ct., 2620. (1978).
19. Powell V. McCormack, 395 U.S. 486 (1969).
20. See e.g. Industrial Union Dep't V. American Petroleum Inst. U.S. 607
(1980) (benzine exposure standards); United Steelworkers V. Marshall, 647 F.2d
1189 (D.C. Cir. 1980) (OSHA lead exposure standards); American Fed. of Labor
V. Marshall 617 F.2d 636 (D.C. Cir. 1979), aff'd in part sub nom. American
Textile Mfrs. Inst. V. Donovan, 452 U.S. 490 (1981) (OSHA cotton dust exposure
standars); Natural Resources Defense Council V. Nuclear Regulatory Commission,
685 F.2d 459 (D.C. Cir. 1982) (environmental impact of uranium fuel cycle
associated with the operation of unclear power plants); Vermont Yankee Nuclear
Power V. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).
-4-
21. Mueller V. Allan, 676 F.2d 1195 (8th Cir. 1982), cert. granted, 103 S.Ct.
48 (1982).
22. Jaffree V. Bd. of School Commissioners of Mobile Co., 554 F. Supp. 1104
(S.D. Ala. 1983), rev'd. (11th Cir. May 12, 1983).
23. Planned Parenthood Ass'n. of Kansas City, Mo. V. Ashcroft, 655 F.2d 848
(8th Cir. 1981), cert. granted, 50 U.S.L.W. 3934 (1982); Akron Center for
Reproductive Health V. City of Akron, 651 F.2d 1198 (6th Cir. 1980), cert.
granted, 50 U.S.L.W. 3934 (1982).
24. Kelley V. Metropolitan Co. Board of Education, 687 F.2d 814 (6th Cir.
1982), cert. denied, 103 S. Ct. 834 (1983); Clark V. Board of Education of
Little Rock, slip op. No. 82-1834 (8th Cir. 1983).
25. Williams V. New Orleans, No. 82-3435 slipop (6th Cir. 1982), rehearing
granted
U.S.L.W.
; Bratton V. Detroit, 483 F. Supp. 930 (1983);
Oliver V. Kalamazoo Board of Education, slip op., No 80-1682 (6th Cir. 1983);
Spirt V. Grove City, 687 F.2d 684 (3rd Cir. 1982); Arizona Governing Committee
V. Norris, 671 F.2d 330 (9th Cir. 1982), cert. granted, 51 U.S.L.W. 3287
(1982).
26. EEOC V. Wyoming, 51 U.S.L.W. 4219 (1983) ; FERC V. Mississippi; 102 S.
Ct. 2126 (1982).
27. Georgia Association of Retarded Citizens V. McDanial, 511 F. Supp. 1263
-5-
(N.D. Ga. 1981), appeal pending, No. 81-7485 (11th Cir.).
28. North Haven Bd. of Education V. Bell, 456 U.S. 512 (1982); Grove City
College V. Harris, 500 F.Supp. 253 (W.D. Pa. 1980), cert. granted, 103 S.Ct.
1181 (1983); Univ. of Richmond V. Bell, 543 F.Supp. 321 (E.D.Va. 1982).
29. American Textile Mfrs. Inst., Inc. V. Donovon, 101 S. Ct. 2478 (1981);
Industrial Union V. American Petroleum Inst., 100 S. Ct. 2844 (1980).
30. U. S. V. Wayte, 549 F.Supp. 1376 (C.D. Cal. 1982).
31. Doe V. Selective Service System, 557 F.Supp. 937 (D. Minn. 1983).
32. Building & Construction Trades Dept., AFL/CIO V. Donovan, 553 F. Supp. 352
(D.C.C. 1982), appeal pending, D.C. Cir., Docket Nos. 831118 and 8311157.
33. Planned Parenthood of America V. Schweiker, slip op., Nos. 83-0037, 83-
0180 (D.D.C. 1983).
34. California V. Watt, 683 F.2d 1253 (9th Cir. 1982).
35. Sierra Club V. Gorsuch, 672 F.2d 33 (D.C. Cir.) (per curiam), cert.
granted 103 S. Ct. 254 (1982).
36. Chadha V. Immigration and Naturalization Service, 634 F.2d 408 (9th
Cir.), cert. granted, U.S. , 70 L. Ed. 2d 81, 50 U.S.L.W. 3244, restored
to calendar for reargument, 50 U.S.L.W. 3998.27 (U.S. July 2, 1982); Consumers
-6-
Union V. FTC, 691 F.2d 575 (1982), appeal filed; Consumer Energy Council of
America V. FERC, 673 F.2d 425 (D.C. Cir. 1982), appeal filed.
37. International Ladies' Garment Workers Union, AFL-CIO V. Sureck, 681 F.2d
624 (9th Cir. 1981).
38. Marie Lucie Jean et. al., Lucien Louis et. al., State of Florida,
intervenor V. Nelson, slip op., No. 82-5772 (11th Cir. April 12, 1982).
39. Morehead V. New York ex rel. Tipaldo, 298 U.S. 587 reh. denied 299 U.S.
619 (1936).
40. Truax V. Raich, 239 U.S. 33 (1915); Adair V. U.S. 208 U.S. 161 (1908);
Coppage V. Kansas, 236 U.S. 1 (1915).
41. Hammer V. Dagenhart, 247 U.S. 251 (1918); Bailey V. Drexel Furniture Co.,
259 U.S. 20 (1922) cf. Carter V. Coal Co., 298 U.S. 238 (1936).
42. See, e.g., Agricultural Adjustment Act, Ch. 25, 48 Stat. 31; Tennessee
Valley Authority Act, Ch. 32, 48 Stat. 58; Gold Repeal Joint Resolution, Ch.
48, 48 Stat. 112; NIRA, Ch. 90, 48 Stat. 195; Gold Reserve Act, Ch. 6 48 Stat.
337; Home Owners Loan Act, Ch. 168, 48 Stat. 643; Jones - Costigan Act, Ch.
263, 48 Stat. 670; Municipal Bankruptcy Act, Ch. 345, 48 Stat. 798; Railroad
Retirement Act, Ch. 868, 48 Stat. 1283; Federal Farm Bankruptcy Act, Ch. 369,
48 Stat. 1289; Wagner - Connery Act, Ch. 372, 49 Stat. 449; Social Security
Act, Ch. 531, 49 Stat. 620; AAA Amendments, Ch. 641, 49 Stat. 750; Farm
Mortgage Moratorium, Ch. 792, 49 Stat. 942; Bituminous Coal Conservation Act,
-7-
Ch. 824, 49 Stat. 991; Bituminous Coal Act, Ch. 127, 50 Stat. 72; Agricultural
Adjustment Act of 1937, Ch. 296, 50 Stat. 246.
43. Lynch V. U.S. 292 U.S. 571 (1934); U.S. V. Butler, 297 U.S. 1 (1936);
Perry V. U.S., 294 U.S. 330 (1935) Panama Refining Co. V. Ryan, 293 U.S. 388
(1935); Schechter Poultry Corp. V. U.S., 295 U.S. 495 (1935); Booth V. U.S.,
291 U.S. 339 (1934); Hopkins Federal Savings Ass'n V. Cleary, 296 U.S. 315
(1935, Ashton V. Cameron Co. Dist., 298 U.S. 513 (1936); Railroad Retirement
Bd. V. Alton, 295 U.S. 330 (1935); Louisville Joint Stock Bank V. Radford, 295
U.S. 555 (1935); Cater V. Carter Coal Co., 298 U.S. 238 (1936).
From 1933 until West Coast Hotel Co. V. Parrish, 300 U.S. 379, in 1937,
the Supreme Court overruled five cases; from 1937 to 1941, it overruled 29,
including: Adkins V. Children's Hosp., 261 U.S. 525 (1923); Morehead V. New
York ex rel. Tipaldo, 298 U.S. 587 (1936); Hammer V. Dagenhart, 247 U.S. 251
(1918); Carter V. Carter Coal Co., 298 U.S. 238 (1936); and Ribnik V. McBride,
277 U.S. 350 (1928). Congressional Research Service, Library of Congress, The
Constitution of the United Stated of America, Analysis and Interpretation
(1973) note 35, at 1791-93. From 1942 to 1947, it overruled 19 more. See id.
at 1793.
44. Schechter Poultry Corp., V. U.S., 295 U.S. 495 (1935).
45. Louisville Joint Stock Bank V. Radford, 295 U.S. 555 (1935).
46. Humphrey's Executor V. U.S., 295 U.S. 602 (1935).
-8-
47. See Brief of the U.S. in U.S. V. Darby, No. 82 (filed 1940) at P. 69.
48. R. Jackson, The Struggle for Judicial Supremacy, xvii - xviii (1941)
49. Bill transmitted to 75th Cong., 1st Sess., H.R. Doc. No. 142 on Feb. 5,
1937; reprinted at 81 Cong., Rec. 880-81 (1937).
50. The Supreme Court overruled precedents in: Anniston Mfs Co. V. Davis,
301 U.S. 337 (337) (1937); Mulford V. Smith, 307 U.S. 38 (1939); Wright V.
Vinton Branch, 300 U.S. 440 (1937); Helvering Davis, 301 U.S. 619 (1937; U.S.
V. Bekins, 304 U.S. 27 (1938); Chicot Co. Drainage Dist. V. Baxter State Bank,
308 U.S. 371 (1940); Graves V. N.Y. ex. rel. O'Keefe, 306 U.S. 466 (1939),
O'Malley V. Woodrough, 307 U.S. 277 (1939); Tigner V. Texas, 310 U.S. 141
(1940) Madden V. Kentucky, 309 U.S. 83 (1940); Sunshine Coal Co. V. Adkins,
310 U.S. 381 1940; U.S. V. Darby, 312 U.S. 100 (1941); California V. Thompson,
313 U.S. 109 (1941); Alabama V. King & Boozer, 314 U.S. 1 (1941); Helvering V.
Mountain Producers, 303 U.S. 376 (1938); Olsen V. Nebraska, 313 U.S. 236 (1941
51. Dred Scott V. Sandford, 60 U.S. (19 How) 393 (1856).
52. Ch. CXI, 12 Stat. 432 (1962).
53. The Amancipation Proclamation is printed at 12 Stat. 1268 (1863).
54. See Works of Charles Sumner, Boston, Lee & Shephard, 1880, Vol. V, pp.
497-98, Vol. VI, p. 144. See also letter of Attorney General Bates to
Secretary of the Treasury Sumner, Nov. 29, 1862, 10 Op. Ag. 382, 412, where
-9-
Attorney General Bates limited the precedential signficance of the Dred Scott
decision as follows:
In this argument I raise no question upon the legal validity
of the judgment in Scott vs. Sandford. I only insist that the
judgment in that case is limited in law, as it is, in fact,
limited on the face of the record, to the plea in abatement;
and, consequently, that whatever was said in the long course of
the case, as reported, (240 pages,) respecting the legal merits
of the case, and respecting any supposed legal disability
resulting from the mere fact of color, though entitled to all
the respect which is due to the learned and upright sources
from which the opinions come, was "dehors the record," and of
no authoity as a judicial decision.
&
55. Southern Pacific Co. V. Jensen, 244 U.S. 205, 22 (1917) (Holmes, J.
dissenting).
56. Congressional Research Service, Library of Congress, The Constitution of
the United States of America, Analysis and Interpretation (1973) 1789-1791 and
1982 Supplement.
57. 163 U.S. 537 (1896); Plessy V. Ferguson was overruled by Brown V. Board
of Education 349 U.S. 294 (1955).
58. Baker V. Carr, 369 U.S. 186.
-10-
59. 328 U.S. 549 (1946).
60 See e.g. Clean Air Act, 42 U.S.C. § 7401 et. seq.; Clean Water Act, 33
U.S.C. § 1251, et. seq. National Environmental Policy Act, 42 U.S.C. § 4321,
et. seq. Federal Water Pollution Control Act, 33 U.S.C. § 1251, et. seq.
61. Univ. of Calif. Regents V. Bakke, 438 U.S. 265 (1978); Fullilove V.
Klutznick, 448 U.S. 448 (1980); United Steelworkers V. Weber, 443 U.S. 193
(1979); McDonald V. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976).
62. Craig V. Boren, 429 U.S. 160 (1976); Parham V. Hughes, 441 U.S. 347
(1979); Caban V. Muhammed, 441 U.S. 380 (1979).
63. Swann V. Charlotte-Mecklenburg Board of Education, 413 U.S. 189 U.S. 1
(1971), Keyes V. Sch. Dist. No. 1, Denver, Colorado, 413 U.S. 189 (1973),
Milliken V. Bradley, 418 U.S. 717 (1974), Dayton Board of Education V.
Brinkman, 443 U.S. 526 (1979); Columbus Board of Education V. Penick, 443 U.S.
449 (1979); Dayton Board of Education V. Brinkman, 443 U.S. 526 (1979); Estes
V. Metropolitan Branches of Dallas NAACP, 48 U.S.L.W. 4118, 4120 (Jan. 21,
1980) (Powell, J. dissenting from dismissals of writs of certiorari as
improvidently granted).
64. Lemon V. Kurtzman, 403 U.S. 602 (1971); Tilton V. Richardson, 403 U.S.
672 (1971); Levitt V. Committee for Public Ed. and Religious Liberty, 413 U.S.
472 (1973); Committee for Public Ed. and Religious Liberty V. Nyquist, 413
U.S. 756 (1973); Sloan V. Lemon, 413 U.S. 825 (1973); Meek V. Pittenger, 421
U.S. 349 (1975); Wolman V. Walter, 433 U.S. 229 (1977).
-11-
65. Roe V. Wade, 410 U.S. 113 (1973); Doe V. Bolton, 410 U.S. 179 (1973);
Planned Parenthood of Central Missouri V. Danforth 428 U.S. 52 (1976);
Colautti V. Franklin, 439 U.S. 379 (1979); Bellotti V. Baird, 443 U.S. 622
(1979).
66. Bigelow V. Virginia, 421 U.S. 809 (1975); Virginia State Bd. of Pharmacy
V. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bates V. State Bar
of Arizona, 433 U.S. 350 (1977); Consolidated Edison Co. V. Public Serv.
Comm'n, 447 U.S. 530 (1980); Central Hudson Gas & Elec. Corp. V. Public Serv.
Comm'n, 447 U.S. 557 (1980); Metromedia, Inc. V. City of San Diego, 453 U.S.
490 (1981); In the Matter of R M. J.
, 102 S. Ct. 929 (1982).
67. Coker V. Georgia, 433 U.S. 584 (1977); Enmund V. Florida, 50 U.S.L.W.
5087 (U.S. July 2, 1982). Furman V. Georgia, 408 U.S. 238 (1972); Woodson V.
North Carolina, 428 U.S. 280 (1976); Gardner V. Florida, 430 U.S. 349 (1977);
Lockett V. Ohio, 438 U.S. 586 (1978); Godfrey V. Georgia, 446 U.S. 420 (1980);
Beck V. Alabama, 447 U.S. 625 (1980).
68. Walter V. U.S., 447 U.S. 649 (1980); Arkansas V. Sanders, 442 U.S. 753
(1979); Marshall V. Barlow's, Inc., 436 U.S. 307 (1978); Chambers V. Maroney,
399 U.S. 42 (1970); Cardwell.v. Lewis, 417 U.S. 583 (1974); U.S. V. Biswell,
406 U.S. 311 (1972). On March 23, 1983, the Supreme Court parented five
unilluminating opinions in a search and seizure case, Florida V. Royer, 51
U.S.L.W. 4293, 4303 (1983), which prompted one dissenting Justice to complain
that the rationale of the plurality opinion was as clear as an impressionist
painting.
-12-
69. Industrial Union Dep't V. American Petroleum Inst. 448 U.S. 607 (1980)
(benzene exposure standards); American Textile Mfrs Inst. V. Donovan, 452 U.S.
490 (1981) (cotton dust).
70. Gottschalk V. Benson, 409 U.S. 63 (1972); Parker V. Flook, 437 U.S. 584
(1978); Diamond V. Diehr, 450 U.S. 175 (1981).
71. See Rules of United States Court of Appeals for the Second Circuit, Rule
34(g) (determination by court not to hear oral argument), Rule 0.23
(disposition by summary order and oral decision), Civil Appeals Management
Plan, Rules 3, 5, 7, Revised Second Circuit Plan to Expedite the Processing of
Criminal Appeals; Rules of United States Court of Appeals for the Fourth
Circuit, Rules 7(b) (disposition of appeal without oral argument), 18
(unpublished opinions); Rules of the United States Court of Appeals for the
Seventh Circuit, Rule 35 (unpublished decisions); Rules of the United States
Court of Appeals for the Eight Circuit, Rule 10 (screening procedures for oral
argument and disposition without oral argument); Rules the United States Court
of Appeals for the Tenth Circuit, Rule 17(c) (disposition by summary order and
oral decision); Rules of United States Court of Appeals for the Eleventh
Circuit, Rules 23, 24 (establishing a two-calendar system with a "non-argument
calendar" and an "oral argument argument calendar").
For a discussion of the problem presented by Rule 0.23 of the Second Circuit
Court of Appeals, see Rule 0.23 of the United States Court of Appeals for the
Second Circuit, Bar Association of the City of New York, Committee on Federal
Courts, published at Record of the Association of the Bar of the City of New
-13-
York, Vol. 38, no. 3, p. 249. The authors of the report indicate that the
rule allowing publication of opinions to be dispensed with may "incline a
judge to spend too little time tracing the possible implications for future
cases of the reasons he is prepared to identify as justifying a ruling in the
case at bar; if the 'bad law' which 'hard cases' make need not be published,
the concern is that there may be more of it." Id. at 258. Justice Rehnquist
has also warned that further "streamlining" "could turn the courts, and
particularly the federal courts, into bureaucracies that might be hard to
distinguish from administrative agencies." Remarks of Justice William
Rehnquist, Jurist-in-Residence Program, St. Louis Univ., St. Louis, Mo., Arpil
6-8, 1983. Caseloads of all federal courts have mushroomed over the past
decades, forcing curtailment of oral argument and resort to assembly-line
procedures for disposing of cases. (See footnote 13, supra.) A majority of
incumbent Supreme Court justices have stated that alleviating its caseload
burden is imperative. See, e.g., Commission on Revision of the Federal Court
Appellate System, Structure and Internal Procedures: Recommendation for a
Change, at A-271 through A-224 (1975); "Justice Lewis Powell: A view from
the top," Cal. Law., Nov. 1982, at 63, 64 (interview with Justice Powell);
Remarks of Justice Lewis F. Powell, Jr., ABA Division of Judicial
Administration, San Francisco (Aug. 9, 1982); Washington Post, Oct. 29, 1982,
at A3 (article entitled "[Justice] Stevens Presses to Cut Caseload," Warren E.
Burger: Annual Report on the State of the Judiciary, ABA mid-year meeting,
New Orleans, Feb. 6, 1983, reprinted at ABA Journal, vol. 69 (April, 1983)
442; Remarks of Justice John Paul Stevens, Annual Banquet of the American
Judicature Society, San Francisco, Calif., Aug. 6, 1982; Remarks of Justice
O'Connor, Joint Meeting of the Fellows of the American Bar Foundation and the
National Conference of Bar Presidents, New Orleans, La., Feb. 6, 1983.
-14-
Oppressive caseloads make time for trenchant reflection and mastery of
records impossible. Circuit Judge Duniway acknowledged in 1975 that the
deliberative pressures on federal courts were endangering the decisionmaking
process, and explained:
When I came to the court [in 1961], I had time to not only read all
of the briefs in every case I heard myself, which I still do, and all
the motion papers .... which I still do, but I could also go back
to the record and I could take the time as I went along to pull books
off the shelves and look at them. And then I had time, when I was
assigned a case, to write. And occasionally I could do what I call
'thinking', which was to put my feet on the desk and look at the
ceiling and scratch my heard and say, ' How should this thing be
handled?'
.... Today the situation is quite different. I have a
strong feeling and I know many of my brothers and sisters on the
court have the same feeling--that we are no longer able to give to
the cases that ought to have careful attention the time and attention
which they deserve.
Quoted in Hruska, "The Commission on Revision of the Federal Appellate
System: A Legislative History," 1974 Ariz. St. L.J. 579, 583 n. 14.
72. See Resnick: Managerial Judges, 96 Harv. L. Rev. 376 (1982).
73. Hepburn V. Griswold, 75 U.S. (12 Wall.) 603 (1870), rev'd by Knox V. Lee,
79 U.S. 457 (1871).
74. Minersville School Dist. V. Gobitis, 310 U.S. 586 (1940); overruled by W.
Virginia School Board of Education V. Barnette, 319 U.S. 624 (1943).
75. Jones V. Opelika, 316 U.S. 584 (1942); overruled by Murdock V.
Pennsylvania, 319 U.S. 103 (1943).
76. 304 U.S. 64 (1938).
77. 41 U.S. (16 Pet.) 1 (1842).
-15-
78. Canon EC-7-4, ABA Code of Professional Responsibility.
79. It should be noted that fairness and justice are not necessarily the
Touchstones of constitutional interpretation. Justice Holmes explained, "That
[to do justice] is not my job. My job is to play the game according to the
rules." Learned Hand, A Personal Confession," as reprinted in The Spirit of
Liberty (3rd ed. )m 397.
80. See, Rule 3.1 (Meritorious Claims or Contentions); Rule 3.8 (Special
Responsibilities of a Prosecutor; Rule 5.2 (Responsibilities of a Subordinate
Lawyer, ABA, Proposed Model Rules of Professional Conduct, draft of June 30,
1982).
THE WHITE HOUSE
WASHINGTON
June 9, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DSR
SUBJECT:
Justice Report on S. 1156, the "Ninth Circuit
Court of Appeals Reorganization Act of 1983"
James Murr of OMB has asked for our views on a proposed
letter from Assistant Attorney General McConnell to Chairman
Thurmond, conveying the Justice Department's views on S.
1156. S. 1156 would create a new Twelfth Circuit Court of
Appeals by spinning Alaska, Idaho, Montana, Oregon, and
Washington off of the Ninth Circuit. Justice would like to
oppose the bill, primarily because the bill would not solve
the basic problems of the existing Ninth Circuit, which are
its size and California's dominance. Arizona, Nevada, and
Hawaii would feel that dominance to an even greater extent
if the bill were enacted. The letter also notes that the
Ninth Circuit has adopted procedural devices to ease the
problems of managing a 23-judge court. Congress should wait
to see how these devices work before taking the fairly
drastic step of further balkanizing the circuits to reduce
the size of the Ninth Circuit. The letter reports that the
bill is opposed by the Ninth Circuit judges, including Chief
Judge Browning, who is from Montana but apparently would
like his chambers as well as his heart to remain in San
Francisco.
S. 1156 was proposed by Senator Gorton (R-Wash.), probably
out of parochialism, although it does address the very
serious problem of the size of the existing Ninth Circuit.
A 23-judge appellate court (28-judge if our bill to add new
judgeships is passed) is a jurisprudential nightmare, giving
rise to frequent conflicts among different panels and a
total lack of coherent legal interpretations. Not too long
ago a distinguished Second Circuit judge, when asked by a
litigant to overrule a decision by a previous Second Circuit
panel, retorted "This is not the Ninth Circuit, counsel." A
conflict between the circuits is a recognized basis for the
grant of certiorari, but the Supreme Court in recent years
has received numerous petitions asserting (correctly) a
conflict within the Ninth Circuit. The conundrum, of
course, consists in the fact that any effective reduction
in the size of the Ninth Circuit would involve splitting
-2-
California between different circuits, which raises problems
of its own.
These problems will probably have to be resolved at some
point, but for now it is enough to agree with Justice that
S. 1156 does not adequately resolve the issues, and that
more study is needed. In any event, the precise division of
the circuits does not affect the President's powers as, for
example, the Intercircuit Tribunal proposal would, and we
can appropriately defer to Justice's judgment.
THE WHITE HOUSE
WASHINGTON
June 9, 1983
MEMORANDUM FOR JAMES C. MURR
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Justice Report on S. 1156, the "Ninth Circuit
Court of Appeals Reorganization Act of 1983"
Counsel's Office has reviewed the above-referenced proposed
report, and finds no objection to it from a legal
perspective.
FFF:JGR:aw 6/9/83
CC: FFFielding
JGRoberts
Subj.
Chron
ID #. 148620 CU
WHITE HOUSE
FG052
CORRESPONDENCE TRACKING WORKSHEET
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User Codes: (A)
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Subject: Justice report on 5 1156, the "Nenth
act of 1983"
Circolit Court of appeals Neorganization
ROUTE TO:
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FOR OUTGOING CORRESPONDENCE:
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
CREW
OFFICE OF management AND BUDGET
SEAL
STATE
WASHINGTON, D.C. 20503
June 6, 1983
Robato
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer
148620CU
TO:
Administrative Office of the United States Courts
SUBJECT:
Justice report on S. 1156, the "Ninth Circuit
Court of Appeals Reorganization Act of 1983"
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than cob June 20, 1983.
Direct your questions to me at (395-4870)
James C. Mufr for
Assistant Director for
Legislative Reference
Enclosures
CC:
Karen Wilson
Mike Uhlmann
Fred Fielding
Mike Horowitz
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Strom Thurmond
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for the views of
the Department of Justice on S. 1156, the "Ninth Circuit Court
of Appeals Reorganization Act of 1983." This bill would create
a Twelfth Circuit Court of Appeals with jurisdiction over the
states of Alaska, Idaho, Montana, Oregon and Washington. It
would leave the Ninth Circuit with jurisdiction over Arizona,
California, Hawaii, Nevada and Guam. Seven of the Ninth Circuit
judges would be transferred to the Twelfth Circuit. The remain-
ing judges would stay with the Ninth Circuit and two new posi-
tions would be created, so the new Ninth Circuit would have 18
judgeships. The Department opposes enactment of S. 1156 for the
reasons set forth below.
The 1978 omnibus judgeship act 1/ increased the judge-
ships in the Ninth Circuit from 13 to 23. The Ninth Circuit is
far larger than the next largest circuit, the Fifth, which has
14 judgeships. Five more judgeships for the Ninth Circuit were
recommended by the Judicial Conference of the United States to
handle the 40% increase in filings that has occurred since 1978;
these judgeships recently were approved by the Senate. These
new judgeships would result in the Ninth Circuit being almost
twice as large as the next largest circuit.
1/ P.L. 95-486, 92 Stat. 1629 (1978)
2/ S. 1013 was approved by the Senate on April 27, 1983.
3/ The Ninth Circuit would have 28 judgeships. With the addition
of the two judgeships provided in S. 1013 for the Fifth Circuit,
it would have 16 judgeships and remain the second largest.
- 2 -
The Chief Justice recently proposed dividing the Ninth
Circuit into three circuits, arguing that a circuit of its size
is not manageable. 4/ When Senator Gorton proposed the substance
of S. 1156 on the floor of the Senate as an amendment to S. 1013,
he compared the position of his home state of Washington in the
Ninth Circuit to the situation that would be faced by South
Carolina if it were in a circuit dominated by New York. 5/ To
be sure, with 59% of the appellate caseload and 44% of the judges
from California, that state is in a position to exert a strong
influence on the direction of the circuit's decisions.
The judges of the Ninth Circuit have taken the position
that dividing the circuit at this time would be premature. Chief
Judge James Browning, who is from Montana, is strongly opposed to
dividing the circuit. In an article soon to be published, Judge
J. Clifford Wallace suggests that other circuits be consolidated
until they are comparable to the Ninth Circuit, in order to
improve the management of the circuit courts as a national system
and reduce intercircuit conflicts.
The Ninth Circuit has instituted a number of adminis-
trative innovations designed to demonstrate that this large of a
circuit is manageable and capable of handling its increasing
caseload. These include dividing the circuit into three adminis-
trative regions, forming "en banc" panels of eleven judges, using
bankruptcy appellate panels, deciding about 50 of the easiest
cases each month without oral argument, and requiring pre-brief-
ing conferences with the attorneys. To some degree, the circuit
has been successful in managing its large volume of cases;
despite an increasing appellate caseload, the court is now
terminating cases faster than they are being filed. 7/
In his remarks on the Senate floor, Senator Gorton
implied that qualitative factors, such as the existence of
regional communities of interest, should play a part in deter-
mining the proper composition of a circuit. Any decision to
divide the Ninth Circuit also should include a conscious
determination that the costs of continued "balkanization" of
circuits are outweighed by the benefits of the collegial
environment possible on smaller courts.
4/
National Law Journal, March 28, 1983, P. 2.
5/
Congressional Record, April 27, 1983, P. S 5340.
6/
Wallace, The Nature and Extent of Intercircuit Conflicts: A
Solution Needed for a Mountain or a Molehill? 71 Calif. L.
Rev. 913, 940 (not yet published).
7/
Letter from William E. Foley to the Speaker of the House of
Representatives, dated February 1, 1983, Attachment 4.
- 3 -
However, any decision to divide the Ninth Circuit would
present serious quantitative obstacles. If the proposed Twelfth
Circuit is created, the Ninth Circuit would remain the largest
circuit, and the dominant position of California in relation to
the smaller states left behind would be increased. Any attempt
to deal with the balance of the Ninth Circuit would require
choosing between two alternatives that present serious concerns:
creating a one-state circuit, or dividing a state between two
circuits. As the attached chart indicates, California accounts
for 59% of the total appeals in the Ninth Circuit, over half of
which appeals are from the Central District of California, which
includes Los Angeles.
The foregoing discussion makes clear that any decision
to divide the Ninth Circuit involves choosing between a number of
competing values. Their application to the Ninth Circuit has
broad implications for the states involved and to the administra-
tion of the federal courts generally. None of the most important
implications of a split has been studied adequately. In two
years, the administrative innovations instituted in the Ninth
Circuit will have been in place long enough to be fairly evaluated.
During that time, the Department will evaluate the effectiveness
of those innovations, study the qualitative factors that promote
sound judicial decision-making, and consider the difficult issue
of how to divide the circuit, if a basic decision to do that is
made.
The Department cannot state with confidence whether
S. 1156 would or would not improve the appellate process in the
states in the proposed Twelfth Circuit. Even if that were the
case, S. 1156 fails to address the situation in the rest of the
existing Ninth Circuit. The Department is of the opinion that
the future of the Ninth Circuit is an issue that should be
decided at one time, because to the extent the existing situation
is unsatisfactory in Washington and Montana, it probably is
equally unsatisfactory in Nevada and Arizona as well. Therefore,
the Department does not support S. 1156.
The Office of Management and Budget has advised that
there is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
As of December 31, 1982
Ninth Circuit Case Filings:
Judicial Allocation
Total Number
3325 (4192)
23
No. of cases
Percent
Allocation Percent
Alaska
74
2.2
1
4.3%
Arizona
290
8.7
3
13.04%
California
58.7
10
43.5%
Northern
543
Eastern
176
Central
988
Eastern
246
Hawaii
86
2.6
1
4.3%
Idaho
79
2.4
1
4.3%
Montana
90
2.7
1
4.3%
Nevada
108
3.2
1
4.3%
Oregon
211
6.3
2
8.7%
Washington
12.5
3
13.04%
Eastern
119
Western
298
Guam
16
.5
0
No. Mariana Islands
1
.03
0
Other
Admin Agencies
Bank. Appeals
Original Proceedings
F.Y.I.
file
-
Judges
FEDERAL DISTRICT JUDGES
THE
BESTAND
WORST
A
PPOINTED FOR LIFE, OUR FEDERAL
affect almost every personal and business transaction-
judges can be enduring tributes to
is as surprising as the range of the judges' abilities. We
the system or tormenting remind-
found lawyers who had been telling one another amaz-
ers of its risks-conscientious or
ing stories about some judge for years, yet not a word
lazy, fair or biased, intelligent
about the judge had appeared in the local press, beyond
or dim-witted. Since the first
perfunctory mention of a decision that he or she had
federal district court judges
made.
were named in 1789, only three have been removed by
War stories were not our only resource. After can-
impeachment.
vassing hundreds of lawyers for initial lists of excep-
More than three years ago, in the July 1980 issue,
tionally good and bad jurists, we read dozens of deci-
The American Lawyer reported on how our federal
sions rendered by the judges we were tentatively con-
judges measure up to the unique trust we place in them:
sidering and sifted through hundreds of pages of trial
We profiled the "best" and "worst" district judges in
records. We consulted law professors, local courthouse
each federal circuit. Now, with one more circuit and
reporters, prosecutors, even judges. If a judge was fall-
dozens of new district judges, we decided to cover that
ing into the "worst" category, we aggressively sought
ground again. Are the judges we picked as the worst in
out those who might provide a different view.
their circuits still just as bad? Are the best living up to
We had four basic criteria: legal ability, tempera-
their promise? Have new appointees outshone the old
ment, willingness to work hard, and integrity. Gauging
bests-or outdone the worsts? As in our last effort,
such qualities, not to mention determining priorities,
because the trial court is where most federal judicial
obviously involves subjective judgments. Yet in most
business begins and ends and because, unlike the court
instances we found a broad consensus as to the two or
of appeals, judges there must make decisions on their
three best or worst judges in each region. The tough
own, we restricted ourselves to the district level. We
decisions came in choosing one particularly good or
tried to find the "best" and "worst" district judges in
bad judge to spotlight, and in some instances that di-
each of the 12 judicial circuits. To narrow the scope
lemma is reflected in our mention of one or more run-
further, all judges on senior status who are not fully or
ners-up.
almost fully active were excluded from consideration,
Democratic presidents outstripped the Republicans
as were those very new to the federal bench. (We did
in terms of appointing judges selected in the best cate-
not designate a worst judge in the Fourth Circuit.)
gory. Carter and Johnson appointed five each; the re-
With no regular election campaigns to trigger assess-
maining two are Nixon appointees. On the worst side,
ments of their performance, most federal judges have
the results are more bipartisan. Republican presidents
been virtually ignored by the press. Yet their work is
Nixon and Eisenhower appointed, respectively, three
usually more important than that of local officials or
and two of the worst judges, while Democrats were
even members of Congress. This absence of regular
responsible for a total of six-three selected by Carter,
press coverage-especially in an age when federal laws
one by Johnson, and two by Kennedy.
THE AMERICAN LAWYER
JULY/AUGUST 1983
99
FIRST CIRCUIT
Tauro was singled out for praise for his
a background marked by broad experi-
and capable, lawyers complain that the
case-management methods. He sends
ence. After receiving his LL.B. from
judge's modus operandi is to assess a
out an extremely detailed pre-trial order
Cornell and serving in the army, Tauro
case rapidly, pick sides, and give a ver-
Maine
in every case and always offers his help
worked for two years as an assistant U.S.
bal lashing to a lawyer who has the au-
Massachusetts
for settlement talks, at which he often
attorney under Elliott Richardson. He
dacity to continue pressing his client's
New Hampshire
hands out index cards for counsel to
then spent 11 years in private practice
claim. "Caffrey is petty, venal, arbi-
Rhode Island
Puerto Rice
write down their high and low settlement
doing business law, with a three-year
trary, capricious, and totally unsuited to
bids. If a settlement is reached, Tauro
stint as counsel to the governor. In 1972
being a federal judge," claims one liti-
enters it that day, rather than waiting for
he served as U.S. attorney for a year
gator who frequently appears in his
closing papers. "I try to create a no-
before being appointed to the bench by
courtroom. "He thinks he was anointed,
doors tunnel to the end of the case,"
President Nixon.
not appointed."
explains Tauro. "A lawyer never leaves
Lawyers say Tauro's years as a com-
Even in front of a jury, Caffrey dem-
here without a date of return. I don't
mercial litigator and corporate lawyer
want any case to get lost. Tauro's back-
have made him a pragmatic jurist. "He's
log of 514 cases (as of May) is well be-
a very sensitive, practical, no-nonsense
low the national average of 620 for fully
judge," says William McCormack of
active judges.
Bingham, Dana & Gould, citing a case
The only blot on Tauro's record is a
Tauro recently helped settle which in-
controversial mandamus petition raised
volved firm client New England Power.
by the prosecution after a jury dead-
New England Power and Boston Edison
locked 11-1 for conviction of state sena-
had been sued for conspiring to limit the
tor James Kelly and Tauro declared a
selection of power suppliers for the town
BEST
mistrial. In 1981 the First Circuit unani-
of Norwood. According to lead defense
mously upheld Tauro's decision and
counsel John Curtin, "Tauro did a very
JOSEPH TAURO, 53
criticized the U.S. attorney for making
outstanding job of timing and getting the
Appointed by Nixon in 1972
the motion, but at the time the Boston
parties in the right position to settle. He
In 1972, when Joseph Tauro was ap-
newspapers made much of the fact that
trifurcated the trial on issues of monopo-
pointed to the federal bench in Massa-
during Tauro's three years as chief legal
lization, fact of injury, and damages. He
chusetts. he inherited a class action
counsel to governor John Volpe in the
recognized the key interest in the case-
against Belchertown, a state institution
1960s, Kelly had headed a state senate
that the town needed a guaranteed source
for the mentally retarded. Shocked by
committee investigating alleged bribes
of power and that NEP had no money to
the conditions described in the com-
by Volpe. The First Circuit upbraided
settle." Tauro helped negotiate a settle-
plaint, Tauro ordered counsel on both
the U.S. attorney for going forward with
ment based on credit after three days of
sides to meet him the following morning
the mandamus attempt when an FBI re-
trial.
at the gates of Belchertown without an-
port showed "no evidence whatsoever
While Tauro sometimes appears to be
.nouncing his visit to the administrators.
that Tauro had ever communicated with
an outspoken and controversial judge,
During his ten-hour surprise tour, Tauro
Kelly" during that investigation.
one of his strengths is designing opinions
and both parties saw residents who were
Some lawyers speculate that the pros-
that balance competing interests. In one
severely overcrowded, covered with bug
ecutors' mandamus effort was, as one
of his most famous cases, Tauro walked
Andrew Caffrey
bites, and lying in their own excrement.
a fine line, leading both sides to appeal,
The conditions were constitutionally
but his decision is now looked to as prec-
onstrates his partiality by making obvi-
indefensible, Tauro recalls announcing
edent. In principle, he ruled in favor of
ous gestures. "Caffrey will visibly react
at the time. "Outside there were acres of
the plaintiffs, who were suing Boston
to a witness-turn his head to one side
lush green grass. Inside the conditions
State Hospital for administering antipsy-
and grimace," says an antitrust lawyer.
ranged from a low of a pigpen to a high
chotic drugs against patients' wishes.
One criminal lawyer recalls that when-
of a human warehouse.
But he awarded no damages, even to
ever his client was testifying. Caffrey
Tauro's swift inspection resulted in
those who suffered from a disease which
would begin "staring at the ceiling or
the defendants in Ricci V. Dukakis decid-
may have resulted from the drugs, on the
brushing dandruff off his robe. If the
ing to settle and negotiate a major reme-
theory that the hospital's doctors had act-
judge doesn't want to listen to you in oral
dial program. A decade later, suits
ed in good faith. The First Circuit af-
argument," the lawyer continues, "he'll
against four other state homes for the
firmed Tauro's order almost totally,
drop his head on the bench or spin in his
mentally retarded have been consolidat-
modifying only his definition of "emer-
chair."
ed with Ricci and Tauro is overseeing the
gency circumstances." Since Tauro is-
Some excuse Caffrey's demeanor as
implementation of consent decrees in
sued his 162-page opinion, says plain-
the product of too many years on the
each case. "Judge Tauro's a catalyst."
tiffs' counsel Richard Cole, doctors
bench-23 years, about half as chief
says Massachusetts attorney general
"use these drugs less and much more
judge. Others say the massive increase in
Frank Bellotti. "He gets both parties to
carefully."
filings has made the judge more con-
exchange views. It was important for us
There is no lack of extraordinary judi-
cerned with speed than with quality. But
to go up for the visit. It was the only case
cial talent among the First Circuit's dis-
most agree that whatever the cause, Caf-
that I decided could not be defended."
trict judges. Edward Gignoux, the near-
frey's irascibility can have devastating
Tauro's skills, however, go far be-
legendary district judge of Maine, has
consequences. Last year, during a bench
yond activism and diplomacy. Lawyers
been widely praised for his adept han-
trial of a Title VII case against Gillette
of all stripes praise his scholarly opin-
dling of the trial of federal judge Alcee
Company, Caffrey flatly refused to con-
ions and his singular ability to hold gov-
Hastings, and Arthur Garrity, the famed
sider part of the testimony of an expert
emment attorneys to the same standard
architect of Boston's school desegrega-
witness the name plaintiff presented to
as private litigators. Two of Tauro's ma-
tion, continues to draw favorable re-
demonstrate discriminatory practices.
jor decisions on constitutional matters,
criminal lawyer puts it, "just sour
views. But with Gignoux on senior sta-
Counsel on both sides recall the judge's
U.S. V. Chadwick and Rogers V. Okin,
grapes" for Tauro's bold and unpopular
tus and Garrity still tied up with the
telling the witness he wasn't interested in
have gone up to the Supreme Court and
decisions on such cases as U.S. V. Chad-
schools case, litigators consistently
talking about logarithms and statistics,
changed precedent along the way.
wick and U.S. V. Pollock. In Chadwick,
choose Tauro as a model jurist-intelli-
the usual methods for proving Title VII
A former assistant U.S. attorney,
which was affirmed by the First Circuit
gent, impartial, hardworking, and inde-
claims. Not surprisingly, he then ruled
John Wall, says of a recent trial before
and the Supreme Court, Tauro ruled to
pendent.
-by Carey Adina Karmel
against the plaintiff and proceeded to de-
Tauro, "I was amazed at the grasp and
suppress evidence of marijuana obtained
certify the class and dismiss the suit-
recall of facts he had. His ability to re-
in an illegal search and seizure of a foot-
WORST
but he did so on his own initiative after
trieve testimony that is a couple of
locker. In Pollock, he dismissed a charge
having denied similar motions by the de-
months old is literally unbelievable."
because of government misconduct.
ANDREW CAFFREY, 63
fense three times. The First Circuit has
Adds John Curtin, a litigator at Boston's
'There were clear indications that cer-
Appointed by Eisenhower in 1960
since vacated Caffrey's decertification
Bingham, Dana & Gould, "Tauro is al-
tain investigative reports had been al-
A volatile temper and severe prosecutor-
order and remanded the case. Getting ev-
ways right, even when he's ruled against
tered to further prosecution,' says
ial bias characterize Andrew Caffrey.
idence admitted is not necessarily the
me on matters of some importance."
Tauro. "Most judges look for a way to
the chief judge of the district of Massa-
end of the problem: In a civil case sever-
Tauro is also widely praised as hard-
save the government's case, says for-
chusetts, according to more than two
al years ago, Caffrey grudgingly ad-
working and extremely efficient. "He's
mer prosecutor Andrew Good. "Tauro
dozen Boston lawyers who practice be-
mitted an administrative law judge's
very flexible at the outset of a case in
is saying the government can't violate
fore him. As one partner in a major firm
findings of fact from a related case but
deciding a schedule, but then he holds
the law in order to convict." Citing
puts it, "There are times you have the
then announced that he intended to ig-
you to it," says Curtin. "He'll strike a
Tauro's frequent practice of giving
feeling you're appearing before the god
nore them, a lawyer on the case recalls.
pleading if it's not filed within the appro-
work-release sentences, one criminal
of vengeance and tasting his wrath."
In his haste to dispose of matters, Caf-
priate time."
lawyer says, "He's the most innovative
Criminal defense attorneys and civil liti-
frey often falls back on the tactics he
Indeed, when the General Accounting
[judge in the Massachusetts district]-
gators on both sides of the aisle say they
knows best: those of a prosecutor. At the
Office did a scathing review of the back-
and the most criticized for it."
dread arguing in Caffrey's courtroom.
time of his recess appointment by Eisen-
log in Boston's federal district court,
Tauro's independence may stem from
While most admit that he is intelligent
hower in 1960 (Kennedy confirmed the
WIDE WORLD (CAFFREY)
100
THE AMERICAN LAWYER
JULY/AUGUST 1983
appointment), Caffrey had been with the
definition of a boundary described in the
"Judge Lasker is always aware that
Court then remanded the case to the Sec-
U.S. attorney's office in Boston for five
deed as the "hollow of the beach so
the law is there to serve people-to be
ond Circuit, where a new panel upheld
years, initially as a first assistant U.S.
called." Caffrey, the appellate court
fair to those for whom it exists-and is
all but a few portions of Lasker's com-
attorney and later as chief of the civil
found, had failed to scrutinize the defini-
not just an abstract principle to be wood-
plex opinion.
division. Several former prosecutors
tion carefully enough:
It
was
im-
enly applied," says one of his former
In criminal cases, lawyers in both the
charge that since Caffrey came to the
proper," the First Circuit opinion read,
clerks, Beth Lief of the NAACP Legal
defense bar and the U.S. attorney's of-
bench, he has often had ex parte contact
"to interpret a phrase of SIX words by
Defense and Educational Fund, Inc.
fice say Lasker differs from many of his
with prosecutors. "He knows a lot more
defining one of them (beach), making a
Lasker says he leaned toward a "pub-
colleagues on the Southern District
about the government's case than de-
guess as to another two (hollow of), and
lic policy" view of the law even before
bench by ruling straight down the middle
fense counsel does,' says one ex-pros-
omitting the last two altogether (so
entering Yale Law School at the end of
instead of showing a progovernment
ecutor. And Caffrey apparently uses that
called). Every word presumptively has a
the Depression, where the faculty in-
bias. One former prosecutor, Gary Naf-
knowledge to strengthen the govern-
meaning."
cluded many proponents of that view.
ment's argument. A defense attorney in
As a lawyer who frequently appears in
Inspired by Franklin Delano Roosevelt
a recent mail fraud case reports that
Caffrey's courtroom puts it, "He has a
and his vision of an activist government,
when a prosecutor missed a key point,
tendency in complicated cases not to pay
Lasker served after graduation on a Sen-
Caffrey picked up the pivotal line of
too much attention to complications of
ate committee investigating national de-
questioning and saved the government's
fact." While even his detractors agree
fense programs and then spent four years
case. Defense counsel complain that
that Caffrey's opinions are generally
in the military. In 1946 he joined the
they never get that kind of assist. (The
well reasoned, the judge is widely criti-
New York firm now called Battle,
judge refused to comment on this or any
cized for taking too little care in assess-
Fowler, Jaffin & Kheel. He made an un-
other aspect of this article.)
ing facts and for cutting off testimony or
successful bid for Congress in 1950 on a
*1 always felt there was another pros-
refusing to admit evidence. "He does
Democratic ticket, and then settled into a
ecutor in the courtroom," says a crimi-
not like long cases with facts to re-
general practice at Battle, Fowler. In
nal defense lawyer who used to appear
solve," says another litigator in the First
time he also began to handle the growing
frequently before Caffrey as an assistant
Circuit. "He likes cases with legal ques-
labor problems of his corporate clients.
U.S. attorney. "Everyone walks in with
tions where he can get opinions pub-
Soon after Lasker was appointed to
the presumption of guilt." Indeed, Caf-
lished."
the federal bench by President Johnson
frey will rarely rule against the govern-
Since he became chief judge in 1973,
in 1968, he acquired a reputation as a
ment, especially on crucial motions to
Caffrey has cut his civil caseload by half,
judge who would not make short shrift of
suppress evidence that has been obtained
though he is said to be quite industrious
civil rights issues, and he was sought out
through questionable means. Says an-
not only in his administrative role-Bos-
by "judge-shopping" civil rights attor-
other former prosecutor, "Caffrey de-
ton's notorious backlog is shrinking-
neys. By the mid-seventies, Lasker had
cides that the defendant is guilty and then
but also as chairman of the Judicial Panel
written a number of landmark decisions
he decides all discretionary rulings
on Multidistrict Litigation. Having the
in the area of civil rights, including Mar-
against him." The judge almost never
judge tied up in other duties seems to
tarella V. Williams, which guaranteed
accepts defense counsel's recommenda-
please litigators; several mentioned with
due process safeguards, particularly the
tions for jury instructions, criminal law-
a sigh that Caffrey was passed over for
right to treatment and special programs,
yers say, and he is notorious for issuing
an appellate judgeship three years ago.
to minors incarcerated as "persons in
extremely heavy sentences, which he de-
"A lot of people wanted to get rid of
need of supervision"; and Kirkland V.
livers without a word of explanation.
him, says one lawyer.
New York City Department of Correc-
talis, now a partner in the New York firm
"There are inmates who classify them-
by Carey Adina Karmel
tional Services, which helped change
of Kramer, Levin, Nessen, Kamin &
selves as 'Caffrey prisoners, says one
civil service exams that were found to
Frankel, recalls a high-visibility stock
lawyer. "He's harsh as hell in sentenc-
discriminate against minorities. But
fraud case he tried in 1971 before
ing." According to prosecutors and de-
SECOND CIRCUIT
none was as far-reaching in its impact as
Lasker, U.S. V. Projansky. "There are
fense lawyers, Caffrey barely listens to
Rhem V. Malcolm, a class action filed in
other judges who might have ruled my
sentencing arguments and never consults
1970 that challenged as unconstitutional
way more often than Lasker,' says Naf-
with counsel before making up his mind.
the conditions in the Manhattan House of
talis, who obtained convictions of 13 of
"The minute you sit down, he's got the
Detention, known as the Tombs. There
the 16 defendants. "But everybody felt
decision," says one lawyer who has had
had been little prison litigation up to that
that Lasker listened to everything they
more than a dozen sentencings before
time, and there were few guidelines for
had to say, and that they got a fair
Caffrey.
Lasker to follow. When he was assigned
shake," he adds, echoing what many
The First Circuit has recently reversed
the case in 1972, he made the first of
lawyers have said about their exper-
Caffrey for being too hasty and too harsh
many visits to city jails. In 1974 Lasker
ences before Lasker. "Lasker gives you
in sentencing. In a marijuana smuggling
ruled in favor of the inmate plaintiffs,
the appearance as well as the substance
case last year, the defendants had ar-
writing that "the dismal conditions
of fairness."
ranged to plead guilty if the prosecutor
Connecticut
which
exist in the institution mani-
Dozens of lawyers interviewed about
would recommend a sentence of 18
New York
festly violate the Constitution and would
Lasker praised him not only as a judge
months. But Caffrey had learned of the
Vermont
shock the conscience of any citizen who
but as a person-a warm and well-
plea bargain in advance and thought it
knew of them." He ordered major re-
rounded individual (a classicist, musi-
too lenient: He refused to let the prosecu-
forms. New York City was then in the
cian, and voracious reader) who is sin-
tor make any recommendation at all and
BEST
midst of its worst financial crisis; six
cerely concerned about society's ills and
handed down sentences of at least four
months passed, and the Tombs remained
those most afflicted, they say. "Lasker
years apiece. Caffrey was also reversed
MORRIS LASKER, 66
unchanged. Lasker then ordered that the
wrote the book on decency," declares
in a drug possession case for sentencing
Appointed by Johnson in 1968
Tombs be shut down within 30 days un-
one lawyer who has appeared before him
a minor to five years of hard time when
This unusually strong circuit is home
less corrections department and other
many times, adding, "I wish I could be
the defendant was eligible for less severe
to Judge Edward Weinfeld, whom we
city officials came up with a plan to im-
more like him.)
treatment as a youthful offender.
called the best judge in the Second Cir-
prove the jail. The Second Circuit
Among prosecutors, Lasker is notori-
In civil matters, litigators complain
cuit (and probably the nation) in our
upheld Lasker's ruling, the city shut the
ous for hislight sentences. Lasker says
that Caffrey is not so much biased as
1980 survey. Weinfeld, who is now 82,
Tombs, and Lasker was pilloried by the
he is convinced that prisons do not reha-
unpredictable and petty. One lawyer re-
is still master of them all; he has not
Daily News and excoriated by many pub-
bilitate but usually turn out individuals
counts that in the recently concluded,
taken senior status or slackened his leg-
lic officials for exceeding his authority.
who are far more hardened than when
multidefendant Screws litigation, Caf-
endary pace. We name him "best emeri-
The Tombs, totally gutted and renovated
they went in. He has methodically toured
frey rejected a government proposal to
tus. Among the less experienced jurists
under Lasker's monitoring, re-opens this
and inspected every prison he has moni-
use three attorneys to present its case and
in the circuit, many deserve recognition;
summer.
tored. "Since he knows what the clinker
announced that each side would be per-
but Judge Morris Lasker is a clear stand-
While Lasker is best known for his
is," says one former clerk, "he thinks
mitted only one lawyer. (The judge re-
out.
civil rights decisions, he is equally at
long and hard about sending someone
lented within a day or two.) In other civil
When attorneys appearing before
home when presiding over complex
there." Lasker reads all pre-sentencing
suits, litigators charge, Caffrey tends to
Lasker offer arguments that are long on
commercial litigation, and his thought-
reports himself-this same former clerk
reach a conclusion after hearing only
abstract reasoning but short on common
ful, well-written decisions are rarely re-
says that in his two-year clerkship. the
part of the evidence and, as in criminal
sense, he will sometimes rein them in
versed. One occasion on which he was
judge discussed sentencing with him
cases, once he's made up his mind he's
with two words: "Too lawyerly."
reversed by the Second Circuit was in a
only once or twice-and apparently
against you, he almost never decides a
Lasker's real sympathies lie with the
major antitrust case, CBS V. ASCAP and
keeps an open mind until all arguments
discretionary ruling in your favor.
people who stand as the plaintiffs or de-
BMI, in 1974. CBS had alleged separate
are finished. According to this former
Moreover, they complain, Caffrey
fendants behind all the legal maneuver-
price-fixing conspiracies within the
clerk, the sentence he imposed at the
does not take the time to handle complex
ings and who will feel the impact of his
country's two biggest music copyright
close of a sentence hearing was often
cases properly. The First Circuit made
decisions long after lawyers have moved
licensing organizations; after four years
different from the notations he prepared
that point rather sarcastically in its recent
on to other clients. (His efforts to hu-
of discovery and eight weeks of trial,
before its start.
and total reversal of Caffrey's decision
manize the judicial process extend even
Lasker wrote a lengthy, careful opinion,
As one former prosecutor says, with a
in a land claim against the federal gov-
to his wardrobe; he chooses not to wear
in which he ruled against CBS. The Sec-
wry smile, "Lasker listens to the same
ernment. The essential issue was the
his robes during civil proceedings.)
ond Circuit reversed, but the Supreme
argument on sentencing that he's heard a
BILL POWERS
THE AMERICAN LAWYER
JULY/AUGUST 1983
101
SECOND CIRCUIT, continued
authorized a petition for a writ of manda-
Haight-she vacated the bond.
sociate. There, Lowe announced her de-
hundred times before, as though he were
mus in U.S. V. Jose Antonio Cabrera-
The assistant U.S. attorney then ap-
cision to throw the case out sua sponte
hearing it for the first time. He always
Sarmiento.
pealed to New York district judge Milton
because, she said, the complaint had not
believes that someone just may turn
In September 1980 Cabrera had been
Pollack. Pollack, it must be said, is the
stated facts that would support its allega-
around. Sometimes. it seems to me a
indicted and arraigned in Miami with 14
perfect progovernment analogue to
tion of a Williams Act violation. Lowe
kind of naiveté-he seems to believe in
co-defendants on a narcotics conspiracy
Lowe; in criminal cases, he treats the
also denied the panic-stricken associ-
the perfectibility of human nature."
charge. and the federal district judge set
assistant U.S. attorneys with such favor-
ate's requests to replead or to conduct
by Connie Bruck
a trial date in January 1981. Cabrera
itism and solicitude that he is known in
discovery.
was then sent to New York to be ar-
their office as "Uncle Miltie." (His de-
In the Second Circuit's reversal in
WORST
raigned on a similar charge, which had
disions are rarely reversed, however.)
March 1982, Chief Judge Wilfred Fein-
been pending since he became a fugitive
Pollack reinstated the bond. "Some-
berg wrote that "we are troubled by the
MARY JOHNSON LOWE, 59
in 1975. Cabrera's case came before
one got in touch with Judge Haight, who
procedural aspects of this dismissal,"
Appointed by Carter in 1978
Lowe in mid-November, at which
was the trial judge on this case," ex-
and then went on to cite six rules of fed-
When she presided over U.S. V. Weiss
time-over the protests of both the New
plains Pollack, "and he said that he con-
eral procedure that Lowe had ignored.
last winter, New York district judge
York and Miami prosecutors-she set a
sidered this witness essential to a proper
Moving on to the merits, the court add-
Mary Johnson Lowe was an even-tem-
trial date on the New York charge one
trial and had tried to ensure his presence
ed, "We are also not convinced that ap-
pered, diligent jurist who won high
week after the Florida trial (which would
by the $2-million bail. There was reason
pellant failed to state a cause of action in
marks from both the defense lawyers and
take at least four weeks) was scheduled
to suppose that without that high a bail,
its original complaint," and concluded
the prosecutor. It was a time when Lowe
to begin. The district judge in Florida
he might not be available-either be-
that there were issues of fact that had to
was under special scrutiny. Not only was
issued a writ of habeas corpus ad prose-
cause he'd skipped the country or been
be tried.
Solomon Weiss, assistant treasurer of
quendum for Cabrera's return, noting
snuffed out.
Another civil case, Charles E. Sigety
Warner Communications, a high-visibil-
that if Cabrera did not return, the court
"I understand that the government
V. Robert Abrams, demonstrates Lowe's
ity defendant, but his trial coincided with
would be required to hold two separate
said to Judge Lowe that they had located
proclivity for reaching a decision via a
Lowe's being considered for a slot on the
trials (for the 14 co-defendants and for
Judge Haight at a motel in Kentucky and
route that seems almost to defy reason.
New York Court of Appeals. (She was
Cabrera), while a delay in New York
that he would explain to the emergency
Charles Sigety, a nursing-home propri-
not one of the four people ultimately rec-
would add nothing to the judicial work-
judge [Lowe] the need for this witness-
etor, had been served in 1975 with a
ommended by the state commission on
load. Lowe nonetheless ordered that Ca-
but that Judge Lowe didn't wish to call
subpoena directing him to produce the
judicial nominations.) The showcase as-
brera not be removed, and the govern-
nursing home's books and records for a
pect of the Weiss trial, however, does not
ment petitioned for mandamus.
five-year period. When he did not pro-
detract from what Lowe demonstrated
Lowe based that decision on her belief
duce records for two of those years, the
there: that she is capable of being an
that the government had interfered with
special prosecutor moved for an order
excellent judge when she wants to be.
Cabrera's Sixth Amendment right to
holding Sigety in contempt. At hearings
But that fact would come as a shock to
counsel by obtaining an order from an-
in state court, Sigety introduced several
legions of lawyers, both civil and crimi-
other New York judge barring one of
witnesses-but did not testify himself-
nal, who have appeared before her dur-
Cabrera's Florida attorneys, Irwin
in an attempt to show that the missing
ing the past five years.
Lichter, from visiting him at the Metro-
records could not be located. He was
Many of those lawyers know Lowe as
politan Correctional Center in New
cited for contempt and ordered incarcer-
a passionately opinionated, abusive, and
York. The government argued in its
ated until he either produced the records
defensive jurist in whose court they have
mandamus petition that Cabrera's other
or gave a reasonable explanation for not
had no semblance of a fair hearing. In
Florida counsel had had access to him in
doing so.
civil cases, lawyers say. her rulings are
New York and that there had been ample
After this decision was affirmed by
often arbitrary and capricious. though
reason to prevent Cabrera from seeing
the New York state appellate courts and
not guided by any particular bias. In
Lichter: According to the government's
his petition for a writ of habeas corpus
criminal cases, however, bias is all. Un-
brief, Lichter had been stopped earlier
was denied, Sigety was finally impris-
like many of her colleagues in the South-
that year by a U.S. Customs agent as he
oned in April 1978. Four months later,
em District, Lowe's touchstone is her
was taking $200,000 to Bogota, Colom-
Sigety petitioned for a review of his con-
antagonism toward the prosecutors from
bia. In any case, the issue had already
tempt citation, offering to testify about
the U.S. attorney's office and her ready
been litigated, and the Second Circuit
his knowledge of the missing records.
suspicion of their good faith.
had affirmed the order. Finally, the gov-
But at the requested hearing, he denied
"Judge Lowe is half courageous and
emment argued that any remaining issue
any knowledge of the whereabouts of the
half crazy," says one former assistant
regarding Cabrera's right to counsel in
records at the time the subpoena was
U.S. attorney. admire the fact that she
the Florida case would properly come
served. And on cross-examination,
is willing to buck the prevailing senti-
before the Florida judge-who had indi-
when questioned about the location of
ment in that courthouse, which is pro-
cated that he saw no Sixth Amendment
the records before that time, Sigety re-
government-but I don't admire the fact
problem.
Mary Johnson Lowe
fused to answer, invoking his Fifth
that she often gets to her rulings in a way
In a rare, if not unprecedented, action,
Amendment privilege. He then testified,
no rational mind can fathom.'
the Second Circuit panel did not request
him," Pollack adds. Lowe refused to
with a continuing objection. At the hear-
Lowe's pro-defense posture would
oral argument on the petition for the writ
comment on this, or any of the cases
ing's end, the state court judge found
surprise few familiar with her back-
and did not write an opinion explaining
described in this article.
that Sigety had still not given a reason-
ground. She spent more than 16 years as
its decision, but granted the mandamus
Interestingly enough, Lowe's pro-de-
able explanation for his failure to pro-
a criminal defense litigator in the Bronx.
in a one-sentence order.
fense zeal in pre-trial motions and trials
duce the records and ordered him back to
"She was a good defense lawyer,` says
A self-styled maverick, Lowe seems
does not extend to the sentencing
prison.
one prosecutor who has known Lowe as
to make it a credo to go her own way.
phase-where she is occasionally quite
Sigety's subsequent appeals to the
both an attorney and a judge, "and she
She reminds lawyers who come before
harsh. "She's good to try a case before
state appellate courts were futile. Then,
still is." According to a prosecutor in the
her that she is guided by only one stan-
because of her bias," says one criminal
in June 1979, Sigety filed a petition for a
Bronx County district attorney's office,
dard-the Constitution-and is not a
defense lawyer, echoing the views of
writ of habeas corpus-and came before
Lowe was notorious for her prejudice
member of the club. As she stated in the
many of his colleagues. 'But she's terri-
Judge Lowe. Lowe found that Sigety's
against prosecutors during her two
course of hearings in U.S. V. Dunleavy
ble to take a plea before, because the
assertion of his Fifth Amendment privi-
years as a judge on the Bronx County
in June 1980 when a prosecutor made a
truth is, she has no love for defendants.
lege had been proper and that the state
supreme court. Within two years after
remark about what was customary prac-
What rules Judge Lowe is not her love,
court judge had erred in continuing his
she was appointed to the federal bench
tice in the Southern District, "I don't
but her hatred [of the prosecution].'
incarceration based on the compelled
by Carter in 1978, a full-scale war was
care whatever is done in this courthouse.
Although Lowe is not burdened with a
testimony.
raging between Lowe and the U.S. attor-
I took an oath to uphold the Constitution,
predictable prejudice in civil cases, her
The Second Circuit reversed, in a tone
ney's office. Lowe repeatedly sum-
and I couldn't give a tinker's you-know-
reasoning is sometimes as opaque as it
that can best be described as perplexed.
moned the U.S. attorney or the chief of
what about what anybody else does. I do
was in Cabrera. One of Lowe's most
"Assuming arguendo that the District
the criminal division to complain about
what I think is right."
bizarre decisions was the one she ren-
Judge's determination that Sigety was
what she considered to be their assis-
Last summer Lowe once again went
dered in a shareholders' suit, Schlesing-
within his rights in invoking the Fifth
tants' misconduct, and on at least one
her own volatile, almost inscrutable
er Investment Partnership V. Fluor Cor-
Amendment on cross-examination was
occasion, she banned a senior assistant
way, overturning a $2-million material-
poration, in May 1981. The plaintiffs,
correct," wrote Judge Thomas Meskill,
from her courtroom. Several times,
witness bond which had been set by
represented by Stuart Wechsler of New
"we are unable to affirm the decision
prosecutors had discussed seeking a writ
Judge Charles Haight, Jr., a colleague
York's Kass, Goodkind, Wechsler &
below on that ground because we find
of mandamus to remove Lowe from a
on the Southern District bench. Haight
Labaton, were alleging that Fluor had
nothing incriminating in his testimony."
particular case (an action taken by the
had set the bond just before he left on a
published a tender offer that was ambig-
The court also pointed out that Sigety
U.S. attorney's office only once or twice
five-day vacation, and the defendant
uous about its cutoff date, thereby caus-
was incarcerated not for giving incrimi-
in a decade). But some argued against it,
came to contest it before Lowe. After an
ing shareholders to lose the chance to sell
nating testimony-indeed, he'd offered
believing it would only exacerbate
acrimonious hearing, which was vintage
their stock. Less than three weeks after
only exculpatory answers-but for his
Lowe's seemingly constant presumption
Lowe-she repeatedly bullied the assis-
the complaint was filed, Lowe called the
contempt of court in failing to give a
that they were conspiring to thwart de-
tant U.S. attorney, introduced a loop-
lawyers to a status conference, to which
reasonable explanation for not producing
fendants' rights. Finally, in December
hole the defense lawyer had missed, and
Wechsler-thinking that its purpose was
the records.
1980, U.S. Attorney John Martin, Jr.,
accused the prosecutor of having misled
to set a discovery schedule-sent an as-
Many lawyers say that Lowe still con-
NEW YORK TIMES
102
THE AMERICAN LAWYER
JULY/AUGUST 1983
ducts herself like a state court judge, in a
lawyer puts it) when Edward Becker was
ning unsuccessfully for Congress as a
1980, and by all accounts, did it superb-
way that makes her anomalous on the
tapped for promotion to the circuit court,
Democrat in Bucks County, which is
ly. Edwin Rome, name partner at Phila-
Southern District bench. She will often
lawyers in Pennsylvania and New Jersey
heavily Republican, he was appointed as
delphia's Blank, Rome, Comisky &
take over the cross-examination of wit-
say their district courts are still crowded
judge to the Bucks County Court of
McCauley and special counsel to the
nesses, particularly when they are law-
with outstanding judges. This is espe-
Common Pleas in 1960. Six years later,
Penn Central trustees, says, "[Fullam]
enforcement officials. She also likes to
cially true in Newark, where Frederick
President Johnson named him to the fed-
undertook this enormous task without
go off the record. another practice more
Lacey and Dickinson Debevoise sit: in
eral bench.
being relieved from any of the rest of his
common in state court. Lowe frequently
Camden, with John Gerry on the bench;
A big-firm Pittsburgh litigator who
docket. He was still enormously atten-
summons lawyers into her robing room
and in Philadelphia, where the stars in-
has appeared before most of the Third
tive and available, and he did it all with
where, with no court reporter present.
clude Joseph Lord, III (now on senior
Circuit judges rates Fullam as number
humor and patience.'
she proceeds to express her notions
status) and chief judge Alfred Luongo.
one, saying, "He does a tremendous
Lawyers on the Penn Central case say
about a case's just disposition and tries to
The best of the group, though, is Phila-
job. He can take a complicated case and
Fullam was constantly looking for ways
bully lawyers into coming around to her
delphia's John Fullam.
go right to the heart of it.
of cutting down on paperwork and hear-
point of view, usually by abusing and
Fullam. 61. graduated from Harvard
A good example is the massive reor-
ings to get to the issues. For example,
demeaning one side.
Law School in 1948 and began practic-
ganization of bankrupt Penn Central
Fullam had the lawyers prepare affida-
One civil lawyer in a major law firm
ing at a small firm in Bristol. Pennsylva-
Railroad. Fullam presided over the
vits for witnesses, who were called to
who tried a jury case in Lowe's court
nia, near Philadelphia. After twice run-
messy $3.5-billion case from 1970 to
testify in person only if needed. The
recalls these robing-room experiences as
a kind of hazing. She would call him in
daily. he says, and, in front of his adver-
sary, demand to know what he saw in his
case and lambast him as incompetent. "I
would wake up every morning at 4
A.M., he recalls, "and just lie there,
wondering how I would be demeaned
THE UNCONTESTED
that day. (The jury decided in his cli-
ent's favor.)
These robing-room hostilities tend to
go off, like a starting gun, at the very
LEADERS
outset of cases. One government lawyer
recalls what is an archetypal Mary John-
son Lowe story. At the start of a case, he
IN LAW OFFICE
and the plaintiff's counsel were invited
to the robing room for an off-the-record
conversation. The plaintiff's counsel de-
AUTOMATION SYSTEMS.
livered a lugubrious speech about his cli-
ent's constitutional rights having been
violated. Lowe listened patiently. Then
it was the government lawyer's turn.
There's a reason so many law firms, of all sizes, are
system for your firm. There are stand-alone word
"Your Honor." he began. **I know you
installing Barrister Law Office Management
processors, cluster systems of up to 16 work sta-
probably haven't had time to familiarize
Systems.
tions, and with BARRISTER/NET, several work
yourself with the record in this case"-
It's because the equipment, programs and support
stations can be interconnected on a local area net-
there were already over 1,000 pages of
services are unmatched in the industry. And because
work to satisfy the needs of the largest of law firms.
transcript-"so let me tell you briefly
what's happened.'
we're making it our business to be the best. The best
Leading the way in software.
"Are you implying I can't read?"
at increasing productivity in law firms, and the best
Software is critical to efficiency in office automa-
Lowe reportedly shot back. For the gov-
at providing word processing, time keeping and bill-
tion. Barrister software is keyed to the needs of law
emment lawyer, it was downhill from
ing, litigation support, and calendar systems for law
offices, because it's totally integrated into a unified
there. He lost before Lowe but won in
firms.
system. Word processing, accounting, financial
the Second Circuit.
To back it up, Barrister has ten years of experi-
modeling and information management work to-
In the end, Judge Lowe-with her un-
ence in law office automation and the largest in-
gether enabling the sharing of data and text easily
predictable rages, her bias, and her ap-
stalled base of turnkey computer systems in law
between functions.
parent suspicion of conspiracy-is as
firms today. No other computer system can match
difficult to fathom as some of her rul-
that success.
Leading the way in service.
ings. As a former clerk of Lowe's says,
Service. It's the key to our success in law firms. Na-
"You hear from prosecutors the worst
We're leaders in the legal market.
tionally, only Barrister employees provide the serv-
kinds of horror stories. You hear from
Barrister is comprised of specialists in law office
ice our clients need. Third party service arrange-
some defense lawyers laudatory things.
automation - experts who know how law firms
ments can't match our direct service performance, or
You see decisions that can best be de-
operate, what your problems are and how to help
provide the kind of comprehensive support that we
scribed as bizarre. And that's Judge
your firm become more productive. Specialists that
are committed to.
Lowe."
-by Connie Bruck
know your needs, size the system, install equipment
Investigate Barrister.
and programs and train your personnel. Because of
Call me. We have the system, the software and the
our focus on law firms, we are market savvy. Our
service. We're the uncontested leader, and we'd
THIRD CIRCUIT
products, our programs and, most importantly, our
like the opportunity to show you how we
services are on the money. And when it's
your money, that's good to know.
can help you manage your law firm
more efficiently, more productively
And we're leaders in law office system design.
and at lower cost.
Barrister Law Office Management Systems
are engineered to meet the information needs
of law firms. Quality and high reliability are
Semmethade
designed in. Regardless of size, we have a
Henry P. Semmelhack, President
and Chairman of the Board
Delaware
BARRISTER
New Jersey
Pennsylvania
Virgin Islands
INFORMATION SYSTEMS CORPORATION
45 Oak Street / Buffalo, NY 14203-
Ph. (716) 845-5010
BEST
Name:
Address:
JOHN FULLAM, 61
Appointed by Johnson in 1966
City, State, Zip:
Attorneys practicing before the federal
Law Firm:
BARRISTER is a servicemark and
district bench in the Third Circuit are a
registered trademark of Barrister
AL783
Information Systems Corp.,
smug lot. Although they contend that the
Buffalo, NY.
appeals court "stole our best" (as one
THE AMERICAN LAWYER
JULY/AUGUST 1983
103
THIRD CIRCUIT, continued
not tolerate redundancy. He'll cut a guy
Biunno's opinion went on to cite several
find it difficult to share the district
move was typical of Fullam, who has
off with, 'I've heard that. What else do
failed ESP experiments, particularly
court's confidence that the requested
attempted to transfer the methods of ad-
you have to say?' And he's right."
Harry Houdini's failure to establish con-
material was irrelevant," wrote the ap-
ministrative trials-including submit-
by Leah Rozen
tact with the spirit world, as reason to
peals court. "Without seeing the docu-
ting questions and answers ahead of
doubt Searight's allegations. Biunno
ments plaintiff requested, there is little
time-to his own courtroom in an effort
WORST
also wrote that the case was one of pre-
basis upon which to form a conclusion
to save time and money.
sumably unlicensed radio communica-
that there are no genuine issues of
Fullam also heard some of the cases
VINCENT BIUNNO, 67
tion" and therefore came under the sole
fact.
The plaintiff's request for pro-
arising from Abscam. In November
Appointed by Nixon in 1973
jurisdiction of the FCC. Finally, he con-
duction of documents does not appear to
1980 he voided the jury's guilty verdict
Newark prosecutors have a shorthand
cluded that "Searight could have
us as a fishing expedition in a fanciful
against two Philadelphia politicians, an
way of saying that a case of theirs has
blocked the broadcast to the antenna in
hope of hooking a cause of action, but a
action that made the front page in news-
just been assigned to Judge Vincent
his brain simply by grounding it.
good faith attempt to prepare a challenge
papers across the nation. Fullam said in
Biunno. They call it being "banished to
Searight might have pinned to the
to his dismissal."
his opinion that George Schwartz, for-
Biunnoland"- place where logic is
back of a trouser leg a short chain of
Arthur Uscher, the Rutherford attor-
mer Philadelphia council president, and
elusive, trials are often protracted, and
paper clips so that the end would touch
ney representing the ex-FBI agent, says,
Harry Jannotti, a councilman, had been
digressions reign supreme.
the ground and prevent anyone from
"Somehow [Biunno] took that case and
entrapped and that there was no evidence
Appointed by President Nixon in
talking to him inside his brain."
said on the basis of Twiggs you can't
1973, Biunno came to the federal bench
Biunno's penchant for going his own
have this information you're looking
after more than 30 years with the Newark
way gets him into trouble with the ap-
for.
I've read that case a hundred
firm of Lum, Biunno & Tomkins. He
peals court. A clerk for the Third Circuit
times and I can't fathom how he came up
had a distinguished career there. helping
in 1979-80 recalls that a circuit court
with that.
to draft New Jersey's evidentiary rules
judge once opened arguments on a case
Among the harshest of the appellate
and serving a two-year stint (1958-60)
Biunno had heard by joking, Biunno
court's reversals of Biunno came in 1976
as counsel to New Jersey's then-gover-
was the judge. Is there any further reason
in a pro se case, Scott V. Plante, Klein,
nor Robert Meyner. Biunno went on sen-
we should reverse?'
Weinberg et al. An inmate at a state hos-
ior status in March 1982 following a her-
In 1979 the appeals court granted
pital for the criminally insane had filed
nia operation, but he continues to handle
mandamus against Biunno in First Jer-
several suits charging that his confine-
a nearly full caseload due to a shortage of
sey Securities V. Bergen. The suit in-
ment violated his constitutional rights.
judges, according to the district court
volved First Jersey's attempt to prevent
Biunno dismissed the complaints. The
clerk.
the National Association of Securities
circuit court, saying Biunno had "large-
Of the dozens of lawyers in both pub-
Dealers from proceeding with a disci-
ly ignored the provisions of the federal
lic and private practice who were inter-
plinary hearing against the company.
rules of civil procedure in disposing of
viewed, nearly all reported that Biunno's
NASD had moved for dismissal of the
these claims,' reversed, and ordered the
intelligence, honesty, and unfailing po-
suit, citing First Jersey's failure to ex-
district court to consider Scott's com-
liteness make the frustrations of trying a
haust administrative remedies. Biunno
plaints and his request for the appoint-
case before him all the more saddening.
denied the motion and retained jurisdic-
ment of counsel more carefully. "Cer-
"Biunno is brilliant, but spacy," says
tion, spurring NASD to file for manda-
tainly, in New Jersey, where the bar has
one attorney, summing up his com-
mus. In granting the writ, the circuit
a long tradition of voluntary service, and
plaints. "He creates his own litigational
court scolded Biunno for his "unwar-
where three fine law schools engage in
reality," says another. Under Biunno's
ranted interference with the administra-
extensive public service, there was no
care, the most routine case can become a
tive process" and ordered him to dismiss
need for the court to go it alone," the
prolonged and abstruse affair, with the
the case, which he did.
appeals court wrote.
judge bringing up issues and demanding
Biunno has run into trouble with an-
A particularly notorious Biunno case
briefs on questions neither side cares
other case involving administrative pro-
is United States V. Gallagher, a bank
John Fullam
anything about. A Newark attorney who
cedures. In Higgins V. Kelley, an FBI
fraud prosecution in which Biunno was
was involved in English V. FBI-a case
agent who had been fired brought suit
twice upbraided by the appeals court.
to show that they had a predilection for
that languished in Biunno's court for five
seeking reinstatement and back pay.
The first time around, the appeals court
being bribed.
years before settling out-says,
Biunno granted summary judgment for
found that Biunno had given erroneous
Fullam said in his opinion that he had
"[Biunno] is a sweet guy, but he gets
the FBI, and the agent appealed. The
instructions to the jury, so it vacated the
reached his decision "with great reluc-
involved with his own questions. He'd
appeals court reversed, ruling that the
conviction and remanded the case. The
tance. No one who has viewed the video-
come up with four questions that he'd
FBI's refusal to honor the former agent's
second time, Biunno dismissed the in-
tape evidence in this case could avoid
want briefs on from both sides that didn't
dictment without holding trial. The cir-
feelings of distress and disgust at the
have anything to do with the case." The
cuit court again reversed. Summing up
crass behavior the tapes reveal. The ju-
suit challenged the FBI's keeping of files
Biunno's embarrassing handling of the
ry's verdict represents a natural human
on the plaintiff, but this attorney says
case, the court wrote in 1979: "In the
reaction to that evidence. But, in the
Biunno fixated on the intricacies of the
first appeal, we found sufficient evi-
long run, the rights of all citizens not to
FBI's record-keeping methods. Biunno,
dence to convict but remanded because
be led into criminal activity by govern-
who had served on the American Bar
of error in jury instructions. The district
mental overreaching will remain secure
Foundation's electronic-data-retrieval
court read our opinion as setting a new
only so long as the courts stand ready to
committee from 1958 to 1973, is some-
legal standard for the offense, concluded
vindicate those rights in every case. In
thing of a technology buff, and he kept
that the proofs submitted at the first trial
February 1982 the Third Circuit Court of
asking for more detailed technical infor-
would be inadequate under this standard,
Appeals overturned Fullam, restoring
mation on how the FBI maintained its
and dismissed the indictment. Regarding
the jury's guilty verdict, and the Su-
records. By 1981, when the two sides
the district court's rationale and remedy
preme Court denied certiorari to the de-
settled, the suit had slowed to a dead
as repugnant to our original review, we
fendants in June 1982.
halt. "It was a very old case, which
reverse and remand for retrial." Handed
Lawyers interviewed about Fullam
wasn't moving in a direction for either
the case for the third time, Biunno pre-
first mention his intellectual capabilities,
party," recalls the assistant U.S. attor-
sided over a new trial, at which the de-
many describing him as "brilliant." The
ney who settled the case.
fendants were acquitted.
second adjective is, invariably, "fun-
Biunno's quirky and often esoteric
The trial is remembered fondly by a
ny.' The catch, however, is that, while
opinions have gained a measure of fame
former assistant U.S. attorney, who still
his wit is often used to instruct or simply
among Third Circuit attorneys, who cir-
chuckles at the memory of pro se defen-
to alleviate a tense courtroom, it is also
culate the most exotic examples among
dant Anthony Gallagher conducting a
sometimes used against lawyers who
themselves. Among the most popular are
cross-examination of himself, objecting
"are repetitive and don't seem to grasp
his long digression, in a trademark in-
to his own questions and then rephrasing
the fine point he's honed in on," accord-
fringement case, on the etymology of the
them before answering himself. Gal-
ing to Oliver Biddle, head of the litiga-
phrase "jock itch" and his humorous but
lagher's erratic behavior went largely
tion department at Ballard, Spahr, An-
superfluous discourse on parapsycholo-
unchecked by the judge. At one point,
drews & Ingersoll.
gy and other matters in Ned Searight V.
Vincent Blunne
says the former prosecutor, Gallagher,
Biddle recalls being gently chided by
State of New Jersey (often referred to as
an Irish Catholic, made a motion to
the judge when, in oral arguments, he
"the paper-clips opinion").
request for various documents-a refus-
strike the jury because it included no
kept using the prepositions "prior to"
In Searight, a pro se plaintiff had filed
al backed by Biunno-made it impossi-
Irish Catholics from Bayonne, New Jer-
and "subsequent to.' "With a sort of
a $12-million suit against the state,
ble for the former agent to prepare a
sey, his hometown. "Instead of just dis-
twinkle in his eye," Biddle says, "the
claiming that in 1962, while in custody,
proper defense for his administrative
missing the motion and going on with the
judge leaned down and said, 'Can't you
he had been unlawfully injected in the
hearing. In its opinion, the circuit court
trial, Biunno launched into a history of
say before and after?' When Fullam's
left eye with a "radium electric beam."
chastised Biunno for misinterpreting one
the colonization of New Jersey and the
patience is sorely tried, his geniality can
As a result, Searight alleged, he now
of its own rulings, Twiggs V. U.S. Small
role of Irish Catholics in the state,' says
vanish. As another litigator in a major
heard voices that talked to him inside his
Business Administration, in concluding
the lawyer. "It was wild."
Philadelphia firm puts it: "He does not
brain. After dismissing the suit because
that the documents sought by the plain-
Biunno declined to discuss any of the
suffer fools gladly. Particularly, he will
the statute of limitations had run out,
tiff were irrelevant to the charges. "We
cases that have come before him. Asked
WIDE WORLD (FULLAM)
104
THE AMERICAN LAWYER
NEW JERSEY NEWS PHOTOS (BIUNNO)
to comment on lawyers' complaints that
Attorneys for both the plaintiffs and
he gets off the track in many trials, he
the state praise Harvey's work in the
FIFTH CIRCUIT
opinion that Buchmeyer based his deci-
sion on the facts and the law and not on
responds, "Every case I have had litigat-
prisons case and his dogged adherence to
whether people would like it," says a
ed before me has two sides. Somebody is
a schedule of monthly status conferences
Houston lawyer. A member of the Dallas
always unhappy. It depends on who you
and compliance hearings. Plaintiffs'
bar adds, "It wasn't what we expected
speak to. My job is to be neutral.
counsel Nevett Steele, Jr., a partner at
from someone who had been a partner at
by Leah Rozen
Baltimore's Whiteford, Taylor, Preston,
an establishment law firm like Thomp-
Trimble & Johnston, says Harvey did an
son & Knight."
"excellent job," adding, "He's decisive
In his outside activities as a lawyer,
FOURTH CIRCUIT
and he's fair. He's an excellent fact find-
Buchmeyer had always played the diplo-
er and he stayed on top of the cases."
mat, serving as president of the Dallas
Stephen Caplis, an assistant with the
Leuisiana
bar and director of the state bar but never
Maryland attorney general's office when
Mississippi
taking an active role in politics. (His se-
the case was tried, is equally compli-
Texas
lection for a federal judgeship, he says,
mentary. "[Harvey] was extremely fair
came as a complete surprise. He was rec-
to both sides. He didn't sacrifice quality
ommended by a friend who serves on a
for efficiency, but he got to the issues
panel that advises Senator Lloyd Bent-
and he made rulings. He clearly indicat-
sen on filling judgeships.) Buchmeyer
ed what the court expected of both
BEST
sides."
Lawyers praise, more than any other
JERRY BUCHMEYER, 49
quality, Harvey's ability to make the
Appointed by Carter in 1979
right ruling quickly. In a story similar to
Just before the Fifth Circuit was split in
those told by half a dozen other lawyers,
1981, keeping Texas, Louisiana, and
Charles Bernstein says, "I have seen
Mississippi within its bounds and mak-
Maryland
him take proffered instructions, maybe
ing Georgia, Alabama, and Florida into
North Carolina
fifty of them, and go, 'Yes on one, no on
the Eleventh Circuit, a raft of new judges
South Carolina
two, yes on three.' He just spits it out
joined the Texas bench. Jerry Buch-
Virginia
West Virginia
almost like a machine. And his decisions
meyer, appointed by Carter to the North-
are fair and right under the law. As for
em District of Texas in 1979, was one of
Harvey's opinions, they are character-
this new crop, and he has already drawn
ized as "models of clarity" that are pro-
the attention of lawyers in Dallas and
BEST
duced with very little help, says a former
throughout the circuit for his fairness,
Harvey clerk: "He didn't have his clerks
independence, and intelligence.
ALEXANDER HARVEY, II, 60
ghostwriting for him.'
If I did a poll on judges, Buchmeyer
Appointed by Johnson in 1966
A Baltimore trial lawyer who has fre-
would come out on top, says one Dal-
Widely considered first among his peers
quently appeared before Harvey says he
las litigator, explaining, "My poll
on the federal bench in the Fourth Cir-
marvels at the judge's ability to keep a
would ask which factors influence a
cuit, Alexander Harvey, II. gets most
trial running smoothly, no matter how
judge the most: the law; natural justice
applause for the sharp-witted efficiency
convoluted the issue and how many par-
and equity; race, age, or sex of the par-
he shows in conducting trials. "With
ties are involved. "He just keeps his eye
ties; size of the docket; political or per-
Harvey, you know the case will be tried
on the ball. He doesn't get bogged down
sonal connection with the parties or their
and not go on forever," says one Balti-
or let the lawyers get bogged down,"
lawyers; and reversibility. Buchmeyer's
more litigator, adding, "There's no
says this litigator. "And his opinions are
rulings are based on law tempered by
waste-he's a lean machine." Charles
practically bulletproof."
natural justice and equity.'
Bernstein, a former prosecutor and fed-
Buchmeyer, 50, has quickly earned a
eral public defender and now a partner at
reputation for penetrating and well-re-
Baltimore's Frank, Bernstein, Conaway
searched rulings in cases ranging from
Jerry Buchmeyer
& Goldman, describes the judge as
complex commercial litigation to consti-
"brilliant and practical, and always fully
tutional questions. Lawyers say it is his
surprised the Dallas legal community
prepared. He's incredibly well orga-
sheer legal ability, honed by 21 years as
with his liberal rulings, coming as he did
nized. He invariably knows the case bet-
a defense lawyer and antitrust litigator at
from a big firm with a conservative repu-
ter than the lawyers involved."
Dallas's Thompson & Knight-he was
tation. "He had to suppress a lot there [at
Harvey, now 60, was appointed in
the firm's lead counsel in the massive
Thompson & Knight]," speculates one
1966 by President Johnson. A native of
and ongoing Arizona concrete litiga-
Dallas attorney. 'He was appointed be-
Baltimore, he joined the blue-chip firm
tion-that enables him to untangle even
cause he was able to dissemble. I think
now called Ober, Grimes & Shriver
the most complex set of facts rapidly and
now we're seeing the real Jerry Buch-
when he graduated from Columbia law
to focus on the key points. One Dallas
meyer coming out."
school in 1950. With the exception of
litigator cites Buchmeyer's opinion in a
According to those who appear before
two years as an assistant in the Maryland
highly technical dispute between a sav-
him, Buchmeyer is exceptionally well
attorney general's office in 1956 and
ings and loan association and a real es-
prepared and hardworking, often coming
1957, Harvey spent his entire career pri-
tate trust: The judge "issued an extreme-
in weekends and staying late. One law-
or to joining the federal bench perform-
ly lucid opinion" even though he was
yer who recently tried a complicated
ing litigation and general practice work
relatively new to the bench and didn't
commercial fraud case before him re-
at the firm.
know banking law, the lawyer says, add-
calls that the judge was "so well ac-
Unlike some judges who have
ing that "the case had been in the system
quainted with the briefs and exhibits that
achieved renown through the handling of
for seven years. No one had touched the
he considered eight motions at once and
a single major case, Harvey earned his
issues," he continues, "but Buchmeyer
ruled without any arguments from coun-
through solid day-to-day performances
plunged right in and tried it.
sel."
on the bench. One of the biggest matters
Buchmeyer is perhaps best known for
Buchmeyer's propensity for work and
he has handled involves suits filed
his 1982 decision overturning the Texas
willingness to immerse himself in cases
against three Maryland prisons. One of
sodomy statute, an action lawyers say
has served him well in learning to try
the cases, whose settlement he approved
exemplifies not only his scholarship but
criminal actions, an area in which he had
and continues to supervise today,
also his independence and willingness to
had no experience before coming to the
stemmed from a class action brought by
take a position in an area with few legal
bench. Buchmeyer readily admits he has
prisoners charging that overcrowding
precedents. "Buchmeyer spread the is-
"a lot to learn about criminal trials," but
and various other prison practices violat-
sues out beautifully in his opinion," says
lawyers say his fairness and open-mind-
ed their constitutional rights. Harvey,
a Dallas litigator. "It's as if he were
edness place him ahead of many more
after visiting the prison and conducting
Alexander Harvey
outlining it for a class." The opinion
experienced judges. "He honestly lis-
hearings, found for the plaintiffs in
points out that although a 1976 Supreme
tens, no matter what side you're on; he
1978. That ruling was affirmed in part
The only widespread criticism leveled
Court opinion affirmed a Fourth Circuit
doesn't just do it because he has to,"
and remanded to Harvey by the appeals
at Harvey is that he is a bit cold and
ruling upholding a similar sodomy stat-
says a Louisiana criminal defense lawyer
court later that year, when it agreed with
distant. As one big-firm attorney puts it:
ute in Virginia, the Court in 1980 implic-
who recently appeared before Buch-
his findings but ruled that the state's plan
"His demeanor is ice." An ACLU law-
itly affirmed (by denying certiorari) a
meyer. "He really hears you and consid-
to construct a new prison should be in-
yer is more generous: "He's a superb
New York Court of Appeals decision
ers your arguments."
corporated into Harvey's timetable for
judge. He's very thorough, efficient,
striking down that state's sodomy stat-
Buchmeyer's criminal trial skills have
lessening overcrowding. In 1981 the ap-
courteous, and intelligent. He's just not
ute. Lawyers say it is a tribute to Buch-
recently been tested in two highly publi-
peals court again disagreed with Harvey,
the guy I would pick if I was looking for
meyer's thoroughness that his opinion
cized cases, and both prosecutors and
allowing more prisoners per room than
someone for a fun evening."
has not been appealed.
defense counsel give the judge high
Harvey had permitted.
-by Leah Rozen
"It's obvious to anyone reading that
marks.
UDEL BROS. (HARVEY)
THE AMERICAN LAWYER
JULY/AUGUST 1983
105
FIFTH CIRCUIT, continued
judge in Beaumont, Texas, the heart of
pened, Pittsburgh Corning would pay
peting factors" by Fisher, the Supreme
One case, U.S. V. Algiers, which
the Eastern District. Though he now
the difference.
Court opined.
Buchmeyer heard in March, garnered so
shares the bench with three judges-two
As far as Fisher was concerned, the
Lawyers also fault Fisher's courtroom
much media attention-including a CBS
in Tyler and one in Beaumont-Fisher
jury's mission was to set damages high
manners. Many East Texas attorneys
"60 Minutes" segment-that the origi-
still makes East Texas lawyers toe his
enough to compel Pittsburgh to pay a
complain that Fisher favors his friends—
nal trial judge, Adrian Duplantier of the
line. "You have to go along to get
share. So when the jury brought in its
a few lawyers who practice before him
Eastern District of Louisiana, refused to
along," says one Beaumont attorney.
first verdict of $100,000, Fisher rejected
regularly and with whom he socializes
try the case in New Orleans, where it
"If you don't, he'll make your life
it, saying, according to the trial tran-
when he is not on the bench. One Hous-
was filed. The civil rights case, in which
hell.
script, that "the plaintiffs would get
ton lawyer says, "We try to hire one of
three blacks and one white claimed
Fisher's biggest problem, according
zero. (In fact the plaintiffs had already
Fisher's lawyers when we have a case
criminal violations of their rights by sev-
to lawyers who have practiced in his
received $405,000.) When the jurors re-
over there; he does not take to out-of-
en New Orleans policemen, was moved
courtroom, is his notorious pro-plaintiff
turned a second time with a verdict of
district folks.' Another Dallas attorney
to Dallas, and when Duplantier became
bias. The Eastern District, which covers
$400,000, Fisher again refused to accept
brings his client along when he goes to
ill in February, it fell to Buchmeyer. Tri-
a heavily industrialized but predomi-
it. Before sending them out for a third
Beaumont "so he can see what goes on.
al counsel praise him for taking up the
nantly rural section stretching from the
try, Fisher-in a clear violation of feder-
Otherwise he wouldn't believe it." A
reins quickly, keeping the trial running
Gulf Coast to Texarkana, has a heavy
al rules-announced the amount of the
woman attorney who tried a housing dis-
smoothly, and inspiring an atmosphere
load of personal injury cases, including
prior settlements and instructed the panel
crimination case before Fisher in March
of respect among lawyers on both sides.
numerous asbestos claims, and Fisher, a
"one more time to make an effort at re-
has filed a motion to disqualify him from
"He defused a highly charged, emotion-
former plaintiffs' lawyer from nearby
turning a verdict" since "we want to
the case, claiming in an affidavit that he
al trial by making everyone feel they
Jasper, exhibits a near-total disregard for
salvage some benefit from the trial."
tried to humiliate her during the trial.
were being treated as a peer, says a
the jury system, East Texas lawyers say.
The jury finally set damages at
During her examination of a prosecution
defense attorney. Adds a prosecutor,
"He's going to rule for the plaintiff no
$505,000.
witness, the attorney claimed in her affi-
"Everyone felt he was getting a fair
matter what, and if the jury brings in a
Marlin Thompson of Stephenson,
davit, Fisher said one question was so
shake, but he didn't let us get bogged
defense verdict, he'll grant a new trial,"
Thompson & Dies in Orange, Texas,
irrelevant that the only reason anyone
down." Three of the seven defendants
says one defense lawyer, citing three re-
represented one of the plaintiffs in this
would ask it is "female frustration."
were convicted; Buchmeyer sentenced
cent examples. A lawyer from a major
case and defends Judge Fisher's instruc-
Defense and plaintiffs' lawyers agree
each to five years without parole.
Houston firm who practices in Beau-
tions as necessary guidance for a con-
that Fisher should get credit for bringing
Earlier this year, Buchmeyer also han-
mont points to this tactic as a sign of
fused jury. "Fisher is one of the most
the overloaded Beaumont docket under
dled Dallas's largest drug trial to date-a
Fisher's astuteness: "You can't appeal it
outstanding plaintiffs' judges, I mean,
control. Judges in his district handle
cocaine-dealing case involving 35 defen-
when he grants a new trial. You just have
judges, in the United States," says
three times the national average of cases
dants, including some prominent mem-
to try the goddamn thing again and hope
Thompson. "He's a very resourceful
per judge. "He's certainly served a pur-
bers of the Dallas business community.
he makes some kind of mistake you can
judge. I suppose every plaintiffs' lawyer
pose," concedes one defense lawyer.
Both prosecutors and defense counsel
take to the Fifth Circuit," he says.
in the country would like to have their
"He's moved a terribly backed-up
praised the judge for his fairness and pa-
Fisher was rarely reversed until the
case before Judge Fisher."
docket."
-by Alissa Rubin
tience in keeping the heavily covered
last five years, but defense lawyers say
Defense counsel agree that Fisher is a
seven-week trial under control.
plaintiffs' judge, and they say they are
Something everyone remarks on is
therefore forced to settle. "The only dif-
Buchmeyer's concern for jurors. He runs
ference between winning and losing in
SIXTH CIRCUIT
a particularly tight courtroom during
Fisher's court is that if you win, you
jury trials, insisting that proceedings
settle cheaper," notes one defense attor-
Kentucky
start promptly and that counsel be well
ney wryly.
Michigan
Ohio
prepared. He takes pains to clarify com-
One area in which Fisher is not pro-
Tennessee
plex material to make sure the jury un-
plaintiff is civil rights. Plaintiffs' law-
derstands it. "He will reduce ten min-
yers in civil rights cases often use the
utes of very complicated, confusing tes-
same words in quoting Fisher in explain-
timony down to one minute of very lucid
ing what happens when the judge gets a
testimony,' says a lawyer who has pre-
civil rights case. "He takes you into
sented a number of expert witnesses in
chambers, he tells you he's going to rule
Buchmeyer's courtroom. After jurors re-
against you, and he berates you for
turn a verdict, Buchmeyer invites them
'wasting the court's time,' says one
back to his chambers to answer questions
lawyer in an account repeated by several
about admissibility of evidence or other
others.
matters not discussed in court and to ask
To support their contention that Fisher
for their impressions of the trial.
is weak in civil rights, attorneys point to
One criticism frequently leveled
the South Park public-school desegrega-
BEST
against Buchmeyer is that his docket is
tion case, which Fisher handled for more
backed up. The judge readily admits that
than ten years. It took two reversals and
WILLIAM THOMAS, 72
he has been behind on trying civil cases.
remands by the Fifth Circuit-in 1978
Appointed by Johnson in 1966
"I was trying too many cases at once and
and 1981-and, ultimately, the appoint-
Although he went on senior status two
not leaving enough noncourt time for
ment of another judge, to integrate the
years ago, William Thomas of the
writing opinions and getting out motion
South Park system. In remanding the
Northern District of Ohio is still consid-
rulings,' he says, adding that a heavy
case a second time in 1981, the Fifth
ered the region's most productive and
criminal docket also bogged him down.
Circuit described Fisher's statement that
dedicated jurist. His industry is legend-
He restructured his docket, however,
that's because the Fifth Circuit had af-
the schools were integrated as "clearly
ary: According to his former clerks,
and had virtually caught up by July 1.
firmed one of Fisher's pro-plaintiff ver-
erroneous" and ordered him to design
Thomas arrives at the courthouse before
Buchmeyer may be widely acclaimed
dicts in Borel V. Fibreboard, an early
and implement a new plan within three
8 A.M. and sometimes returns in the mid-
as a jurist, but he is even more well
asbestosis case, and thus they were re-
months, warning that no "further exten-
dle of the night to finish drafting a deci-
known for a humor column he writes
luctant to appeal and settled or paid dam-
sion of time will be permitted.'
sion. He continues to write most of his
each month for the Dallas and state bar
ages instead. The turnaround came
Fisher then recused himself, saying
own opinions, and works clerks and
publications. A sample from a column
when, in the wake of Borel, the number
that he had a relative in the school sys-
counsel hard. Lawyers recount the times
Buchmeyer wrote shortly after his ap-
of asbestos cases mushroomed and the
tem. Remarks one civil rights lawyer,
he conducted pre-trial conferences from
pointment, describing his first few days
cost of settlements became too high.
"He was prejudiced if he had to integrate
a stretcher on the floor of his chambers
on the federal bench: "I learned that the
Since defendants started retaining top
the school but impartial if he didn't."
during a bout of severe back pain several
Miranda warning is not something given
litigators to appeal Fisher's personal in-
It sometimes takes multiple reversals
years ago. "Thomas is one of the most
to ladies wearing hats with lots of fruit
jury judgments, the judge has been re-
to convince Fisher to revise his opinions.
outstanding judges in the country," de-
that federal courts do not accept
versed much of the time.
In a Title VII class action brought in
clares James Wilsman, a former chair-
Get Out of Jail Free' cards
that
In one case now on appeal, Fisher
1976, it took two reversals-one en banc
man of the state judicial screening com-
pleadings, motions, arguments of coun-
took a jury to task three times for failing
21-1-and a Supreme Court affirmation
mittee. "He's an absolutely ideal judge
sel, etc., are controlled by Kitman's law:
to return a verdict large enough to satisfy
to convince Fisher that he did not have
in terms of temperament and scholar-
'pure drivel drives out ordinary drivel'
him. The two plaintiffs had alleged that
the power to prohibit the plaintiffs from
ship. He's scrupulously fair, very quick,
and that Doing Justice is like a love
exposure to products containing asbestos
communicating with potential class
and very careful."
affair: if it's easy, it's sleazy.'
had caused them to develop asbestos-re-
members. The Fifth Circuit opinion not-
But what sets Thomas above his col-
-by Alissa Rubin
lated diseases. Prior to the trial, 15 of the
ed that Fisher's ban was "especially
leagues in the Sixth Circuit is his states-
16 manufacturers named as defendants
egregious
because this is a race dis-
manlike handling of cases-such as the
WORST
settled for about $405,000. Under the
crimination case," and the Supreme
suits arising from the slaying of students
joint-and-several liability theory. the re-
Court, in affirming, added that the trial
at Kent State and the race discrimination
JOE FISHER, 73
maining defendant, Pittsburgh Corning,
court had "abused its discretion" and
case against the Cleveland police depart-
Appointed by Eisenhower in 1959
would have to pay damages only if the
failed to cite evidence supporting its rul-
ment-that might have become explo-
For many of his 24 years on the bench,
jury determined that the plaintiffs should
ing. "[This Court looked] in vain for any
sive public issues in less able hands.
Joe Fisher was the only federal district
get more than $405,000; if that hap-
indication of a careful weighing of com-
In September 1978 Thomas was asked
UP
106
THE AMERICAN LAWYER
by the Sixth Circuit Court of Appeals to
ery materials prepared for the civil trial
police force, Thomas's findings of rac-
Thomas's jurisdiction continues today.
resolve what the court described as "the
of the Kent State cases. Thomas permit-
ism were never appealed. Attorneys on
"Thomas has given a virtuoso judicial
lengthy and bitterly fought litigation" of
ted the return of all guard personnel files
both sides credit the judge with keeping
performance. He accomplishes the rare
the Kent State wrongful death and civil
and grand jury testimony to the govern-
passions restrained. "Thomas's sensi-
feat of giving the losers the feeling
damage claims. The circuit court had
ment, but ordered the government to re-
tivity mitigated some of the hostility my
they've had a fair day in court, says
just overturned a jury verdict acquitting
lease the material once the names of all
client would have otherwise felt.' says
Schwartz, who lost two appeals on var-
the National Guards who fired on stu-
witnesses, investigators, and third par-
police force counsel Niki Schwartz of
ious aspects of the court's remedy.
dents during a 1970 protest of the inva-
ties were deleted. In its appellate deci-
Cleveland's Gold. Rotatori, Schwartz &
Thomas first made his reputation as a
sion of Cambodia. (The suit had origi-
sion in 1981, the Sixth Circuit wrote that
Gibbons. Two months after the close of
common pleas judge in Geauga County,
Thomas "has sought with extraordinary
the bench trial in 1973, Thomas ruled in
an appointment that proved rather cost-
industry to examine the massive records
favor of the plaintiffs, an organization of
ly. His income dropped from $50,000 to
involved here. to protect state and feder-
black policemen, and ordered that an 18
$4,700 when he left his practice as a
al grand jury secrecy provisions and to
percent quota system be formulated for
plaintiffs' personal injury and union la-
protect the privacy rights of individ-
hiring and promotion. Three years later.
bor partner at Cleveland's Harrison,
uals."
the city signed a consent decree in which
Thomas, Spangenberg & Hull in 1951 to
In another controversial case, a dis-
it agreed to overhaul all employment
fill a vacancy on the court. One year later
crimination suit against the Cleveland
practices in the police department, and
Thomas was elected to the court by a
SECURITY.
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trial.
The prospects for a settlement. how-
chosen PIP for their group
benefits to age 70 and provid-
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ever. seemed bleak: The plaintiffs were
insurance plans.
ed an even broader definition
demanding a full apology for the kill-
of disability, while offering up
ings, signed not only by the guards but
to $12,500 in monthly long
by then-Ohio governor James Rhodes—
term benefits.
pip
a condition government officials refused
even to consider. After shuttling back
and forth between the parties, Thomas
says he managed to draft a "statement"
that satisfied both sides.
**I worded it so it would not be an
outright apology," Thomas explains.
Then, according to attorneys involved in
the case, Thomas hammered out a settle-
ment in which the state agreed to pay
$600,000 in damages for the plaintiffs,
plus $25,000 in expenses for the ACLU
lawyers handling the appeal and $50,000
for the plaintiffs' original counsel.
Thomas warned the plaintiffs that the
Ohio state legislature would never con-
sent to the settlement if one-third of it
went to attorneys' fees.
The plaintiffs' original counsel quick-
ly appealed Thomas's restriction on at-
torneys' fees, contending that their con-
tingency contract for one-third of recov-
ery should have remained intact. The
Sixth Circuit Court of Appeals sustained
Thomas's position in 1981, writing that
although there was no precedent for su-
perseding a contingency-fee arrange-
ment, Thomas had acted "within his ju-
dicial discretion."
The Sixth Circuit also upheld Thomas
in two precedent-setting decisions stem-
ming from the Kent State incident. One,
Hammond V. Brown, involved a grand
jury report that led to the indictment of
25 students and bystanders on charges of
inciting a riot. In 1971 Thomas ordered
the physical destruction of the report,
ruling that the grand jury had gone be-
yond the scope of presenting evidence to
support the indictments.
The second case, Krause V. Rhodes,
involved a suit to make public all discov-
THE AMERICAN LAWYER
JULY/AUGUST 1983
107
SIXTH CIRCUIT, continued
a first-year associate, was paid $40,000,
ment came from compassion for the piti-
cials handcuffed and jailed for failing to
wide margin, largely because of his role
or close to 10 percent of the firm's total
able condition of the child is understand-
pay the fees of a court-appointed special
in cleaning up the county, formerly
fees from the case. Cleveland Magazine
able. It was, however, an involvement
master, whose authority was being chal-
known as a gambling haven.
has also reported Battisti's alleged role
which at times raised a serious question
lenged by the board. After the incident,
Thomas immediately revamped the
in arranging lucrative appointments for
whether the trial met those fundamental
one attorney asserts, Battisti was "be-
county's jury-selection system, pre-
at least five other relatives and friends.
standards of fairness which every litigant
side himself with pleasure at having em-
viously controlled by the local jury com-
Battisti has categorically refused to com-
before a federal court has a right to ex-
barrassed these important officials. He
missioner, and insisted that juries be se-
ment on these and other questions.
pect."
was bouncing up and down in his chair
lected by lot. Thomas recalls that in one
The local media has not ventured be-
In other cases, attorneys contend, Bat-
and laughing uproariously." The Sixth
early case a county prosecutor leaned
yond the chief judge's questionable per-
tisti makes his sympathies with the plain-
Circuit Court of Appeals later reversed
over the bench to him and whispered,
sonal ties to examine his 22-year record
tiff so evident that defense counsel settle
Battisti's fee award to the special master,
"Where the hell did you get these jurors?
on the federal bench. Interviews with
to avoid large judgments. Battisti pre-
calling it "excessive."
I don't know any of them.' Thomas re-
sided over a thalidomide class action
Those who defend Battisti, among
convened a grand jury to investigate
filed in the 1970s in which many of the
them some of his former clerks, argue
gambling charges-an earlier investiga-
plaintiffs were represented by Craig
that the judge's decision to implement
tion resulted in no indictments-and ul-
Spangenberg, a well-known product li-
busing in Cleveland was courageous and
timately presided over the convictions of
ability litigator at Cleveland's Spangen-
that he lived with death threats and bad
the owners of the major local gambling
berg, Shibley, Traci & Lancione. Span-
press for years as a result. The bankrupt-
house, the Pettibone Club.
genberg admits that the judge was sym-
cy scandal, they contend, is just another
Thomas spent the next 15 years as a
pathetic from the outset. Battisti inti-
piece of retaliation. But many attorneys
common pleas court judge in Geauga
mated pretty broadly that he would form
claim that Battisti is no scapegoat-that,
and neighboring Cuyahoga County, until
an opt-in class of plaintiffs," says Span-
in fact, he has used his position as chief
Johnson appointed him to the federal
genberg, conceding that Battisti's clear
judge to intimidate lawyers and enforce
bench in 1966. Although Thomas has
signals led the defendant, Richardson-
his own brand of justice. One lawyer
been a Democrat ever since his father
Merrill, to settle the claims and establish
who has appeared before Battisti since
was laid off with one week's notice dur-
a multimillion dollar trust fund for those
his days on the Youngstown common
ing the Depression, his staunch nonparti-
harmed by the drug.
pleas court asserts, "The judge is not
sanship has earned him the respect of the
Battisti is most criticized for his con-
really a judge; he's a duke, a teamster
Cleveland legal community, despite the
duct in the key decision of his career-
muscleman. He wants to project his
fact that his rulings in civil liberties cases
the sweeping 1976 order to desegregate
power, his ideas, and his people across
have often gone against traditional preju-
the Cleveland public schools. Many at-
the whole spectrum of the Cleveland
dices.
torneys familiar with the case contend
community.
"Thomas absolutely applies blind jus-
that Battisti decided it before it was filed
by Carey Adina Karmel
tice," declares Edward Kancler of
and encouraged plaintiffs' counsel to get
Cleveland's Benesch, Friedlander, Cop-
it on his docket. When the suit, Reed V.
lan & Aronoff. "It's clear that you're
Rhodes, was filed in late 1973, it was
SEVENTH CIRCUIT
going to get as thorough a trial as possi-
brought as a related case to the Metropol-
ble, maybe too thorough. He sets a very
itan Housing discrimination suit that
rigorous schedule and thus tries more
Battisti had decided the previous year
cases than most," Kancler adds. Last
but to which it was only tangentially re-
year, Thomas presided over the convic-
Frank Battisti
lated. Reed was initiated by the NAACP,
tion of organized crime leader James Li-
whose chief counsel, Nathaniel Jones,
Illinois
cavoli, and sentenced him to 17 years in
more than two dozen attorneys who have
has been a close friend of Battisti's since
Indiana
prison. "Thomas held both the govern-
appeared before Battisti reveal that his
the early 1950s, when the two were city
Wisconsin
ment and the defense to the highest
tenure has been marred by an aggres sive
attorneys in Youngstown. (Jones is now
tests," says Justice Department strike
pro-plaintiff bias, a vitriolic temper,
a judge on the Sixth Circuit Court of
force lawyer Abraham Poretz. "He was
and a determination to steer cases to
Appeals.)
most conscientious, extremely fair to
his own ends. "He doesn't find facts,
A month later, when the other judges
both sides, and conducted a very thor-
but fits them into his viewpoint," says
in the Northern District discovered how
ough trial.' This year, Thomas has been
one Ohio defense litigator. "He overtly
Battisti had obtained the case, they con-
trying a race discrimination suit against a
lets the jury know that he does not appre-
vened a meeting to protest. According to
major Ohio realty agency and an anti-
ciate proposed pieces of evidence and
one of the judges present, Battisti re-
trust suit against Penn Central. Says
often demeans lawyers in front of the
fused to put the case back in the random-
George Karch of Cleveland's Thomp-
jury."
assignment lottery and exerted his power
son, Hine and Flory, "You're continual-
Many attorneys speculate that Battis-
as chief judge to overrule their objec-
ly trying to keep ahead of him."
ti's pro-plaintiff stance springs from his
tions.
-by Carey Adina Karmel
working-class background. The son of a
Defense counsel did not learn how
southern Italian immigrant, he was born
Battisti obtained the case until more than
WORST
in the steel town of Youngstown, Ohio.
a year later, only a month from trial. At
When he graduated from Harvard Law
that time Battisti called a meeting where
FRANK BATTISTI, 60
BEST
School in 1950, Battisti returned to the
he mentioned that the desegregation case
Appointed by Kennedy in 1961
community where he was raised and
had not been randomly assigned to him,
PRENTICE MARSHALL, 56
Since March, Frank Battisti, the chief
worked as a solo practitioner. represent-
but had ended up on his docket as a relat-
Appointed by Nixon in 1973
judge of the Northern District of Ohio,
ing the victims of industrial accidents
ed suit. Attorneys for the state and from
Prentice Marshall again outshines the
has been under investigation by a grand
and helping run the city's law depart-
Cleveland's Squire, Sanders & Dempsey
competition in the Seventh Circuit,
jury. The inquiry was launched by the
ment. In 1958 Battisti was elected to the
who were representing the school board
which has now completely overcome its
Justice Department's public integrity
Youngstown court of common pleas,
were outraged. "There would have been
once-poor reputation. Marshall's con-
section after one of Battisti's protegés,
and after just three years he was elevated
grounds for having the case refiled,"
tinuing preeminence is all the more re-
bankruptcy judge Mark Schlachet, re-
to the federal bench.
contends one. "It is significant that the
markable in a circuit that also boasts
signed when the trustee he appointed in
Not surprisingly, Battisti is revered by
NAACP managed to get the case to Bat-
such strong jurists as Nicholas Bua,
the White Motor bankruptcy was con-
the plaintiffs' bar, since he regularly
tisti." One defense attorney says they
Chief Judge Frank McGarr, and new-
victed of embezzlement. Bankruptcy
awards huge damages and attorneys'
felt a recusal motion would boomerang,
comer Charles Kocoras.
judge John Ray, Jr., testified in the trust-
fees. Yet his conduct of these cases has
in light of a recent adverse ruling by the
An impassioned workaholic, Marshall
ee's trial that he had reported the embez-
formed the basis of several reversals by
Sixth Circuit on a similar motion, and
is lauded by those who appear before
zlement to the chief judge, who report-
the circuit court. In one bench trial, Bat-
Battisti did not offer to step aside. "The
him for his extreme sense of fairness, his
edly failed to act on Ray's information.
tisti awarded more than $1.6 million to a
judge doesn't care about appearances of
diligence and scholarship, and his innate
To make matters worse, in May an-
seven-year-old girl whose face was per-
impropriety," says one of his former
decency. This assessment is surprisingly
other federal judge on the Northern Dis-
manently disfigured when her father ac-
clerks. Battisti, again, would not com-
unanimous, given the ideological differ-
trict bench, Ann Aldrich, released an af-
cidentally spilled a bottle of liquid drain
ment.
ences among those interviewed. "He is
fidavit which formed the basis of her tes-
cleaner on her. In 1978 the Sixth Circuit
But even those who agree with the
consistently sensible and thoughtful
timony before the grand jury. She
cut the award by more than half, and, in
judge's ruling in Reed criticize Battisti
about the rights of both parties in litiga-
charged that Battisti had used his influ-
a 2-1 opinion, wrote: A careful reading
for making an already painful issue more
tion," says a civil liberties specialist,
ence to steer bankruptcy work to his
of the entire record of the trial compels
divisive. "He disparaged counsel and
adding, "He shows a fierce compassion
nephew's firm-Cleveland's Climaco,
the conclusion that the trial judge, from
ruled against us on a whole host of evi-
for the rights of the downtrodden."
Seminatore, Lefkowitz & Kaplan-in
the outset, was emotionally involved. It
dentiary matters," says one defense law-
"Some deem him pro-defense, but I
exchange for the nephew's receiving lu-
manifested itself in one-sided interroga-
yer. 'At times, he dismissed arguments
don't. He's simply the brightest, fairest
crative bonuses. The allegations center
tion of witnesses by the court, in restric-
out of hand," says another, adding that
guy here," says one Chicago prosecu-
on the appointment of the Climaco firm
tions on cross-examinations, and even in
"he was arguing on the plaintiffs side
tor.
as examiner in the White Motor proceed-
repeated interruptions of defense coun-
the whole time. But most point to the
Marshall excelled at civil and criminal
ing-work for which Battisti's nephew,
sel's closing argument. That the involve-
time he ordered two school-board offi-
litigation, as well as scholarship, before
WIDE WORLD
108
THE AMERICAN LAWYER
JULY/AUGUST 1983
ceived ominous early-morning phone
to the unpredictable and the unintelligi-
McMillen turned down both sides' mo-
calls from unidentified callers, Marshall
ble. At times, says one Chicago prosecu-
tions for summary judgment and held a
quickly sequestered the jury and
tor, "it's almost impossible to penetrate
trial on liability before ruling on certifi-
squelched defense motions for a mis-
his logic."
cation, throwing both sides into confu-
trial.
Maybe that accounts for McMillen's
sion. It was only after the trial, which the
Marshall underwent quintuple-bypass
decline from a 54.7 percent favorable
plaintiffs won, that McMillen certified
heart surgery in 1981, and his court
rating in a Chicago Council of Lawyers
the class. He was reversed for clear er-
schedule has been trimmed to four days a
survey in 1977 to a bottom-of-the-barrel
rors by the Seventh Circuit. "It was a
week. Still, says one lawyer involved in
37.2 rating in 1979; the only judge scor-
typical McMillen case, says this de-
the bribery trial, "he probably worked
ing lower in that poll was James Parsons,
fense attorney. "Lawyer A says it
harder than most of us. "It was as if on
who was rated the circuit's worst in The
should be A, Lawyer B says it should be
day one, he knew what might happen on
American Lawyer's 1980 survey but
B, and McMillen says it should be C and
day forty,' says another.
who is now on senior status.
screws everything up."
Lawyers who have practiced before
McMillen sometimes willfully ig-
McMillen fault him for not understand-
nores the most elemental of rules in favor
ing issues in complex cases; for showing
of his own unique-some say outland-
bias in criminal rulings; for issuing un-
ish-form of jurisprudence. ("When
clear rulings; and for being generally un-
E.T. phones home, Judge McMillen an-
prepared. And McMillen knows it. Last
swers," observes one prosecutor.) The
UWIRES
association
5
-
year he took an embarrassing swipe at all
most legendary example of McMillen's
exclusive Chicago suburb. The couple
types of judicial evaluations in a Chica-
insistence on his own unconventional
had arranged to buy a $675,000 house
go Bar Record article, saying that al-
reasoning occurred in 1976, after the tri-
there, but at the last minute was told by
though "judging the judges" has be-
al and conviction of a defendant on
the association that the house had al-
come "a favorite extracurricular activity
charges of aggravated kidnapping and
ready been sold-to the daughter of the
for a large number of organizations and
robbery. U.S. attorney Samuel Skinner
multimillionaire founder of the suburb.
journalists," he believed most voters
learned that the wrong person had been
After a highly publicized bench trial,
rarely paid any attention to unfavorable
convicted, even though six witnesses
Marshall found that the defendants com-
ratings.
had (mistakenly) identified him as the
mitted "flagrant and willful violation of
McMillen had judicial experience be-
culprit. Acting on new evidence gath-
civil rights law by attempting to block
fore being appointed to the federal
ered by the FBI after the trial, Skinner,
the sale" of the house, and awarded the
bench. He was elected to the Cook
now convinced of the innocence of the
plaintiffs nearly $300,000 in damages.
County Circuit Court in 1966; before
convicted man, asked McMillen to va-
According to plaintiffs' lawyer F. Willis
that. he was a partner at Chicago's Bell,
cate the verdict. He steadfastly refused,
Caruso of Chicago's Isham, Lincoln &
Boyd & Lloyd. Although McMillen is a
insisting that all those witnesses couldn't
Beale, "Marshall clearly had done vora-
Harvard law graduate and former
have been wrong. The only compromise
cious reading of all the recent fair-hous-
Rhodes scholar, lawyers who practice
he offered was a new trial of the same
ing laws. Other judges might have been
before him say intellectual inconsistency
defendant. Finally, McMillen was pres-
hesitant to give out such a large award,
may be his most frustrating trait. Ac-
sured by the appellate court to set aside
but Marshall, having such a grip on the
cording to one former federal prosecu-
the verdict, which he did, reluctantly.
recent cases in the field, was very aware
tor, You can come up on the same mo-
It has fallen to McMillen to oversee
of the awards being given. Even more
Prentice Marshall
tion two days running, and with the exact
the difficult and controversial redistrict-
significant was Marshall's direct order to
same facts, and get two different rul-
ing of Chicago's ward boundaries. His
the defendants to sell the same house to
When Marshall errs, it is generally
ings.' This attorney recalls that new
creation of four new wards this year,
the plaintiffs. The losers complied.
due to the one real flaw in his judicial
members of the U.S. attorney's office
each with slight majorities of blacks or
Since 1970 Marshall has overseen the
temperament: an occasionally explosive
were explicitly counseled by their supe-
Hispanics, has flown in the face of the
hiring and promotion of police officers
temper. His moral and legal perfection-
riors to expect bizarre rulings from
substantial voting inequalities that the
in the Chicago police department. He
ism can sometimes lead to outbursts. In
McMillen. You just know that one way
court-ordered redistricting was meant to
has been tough on the city when it has
the Teamsters trial, he exploded at the
or another, you'll get burned," con-
erase. Lawyers and other courtroom per-
not been in compliance with his court
government's reluctant "star" witness,
cludes the attorney, who still appears be-
sonnel chalk up his performance not tc
orders about minority hiring and promo-
Dorfman aide William Webbe, as the al-
fore McMillen in his private practice.
political or racial bias but to his weak
tion, and has on occasion held up thou-
leged co-conspirator strove to help the
"But it happens to both sides, so in that
grasp of the case. According to an attor-
sands of dollars in revenue sharing when
defense. On another day, Marshall re-
respect he democratic."
ney who has monitored the case closely,
the department has failed to meet his
buked a Jenner & Block lawyer for ne-
During the trial of an FALN terrorist
"the judge has a terrible time under-
standards.
glecting to pay a court reporter for daily
in 1981, McMillen told the prosecutor to
standing most of the evidence put before
Last year Marshall presided over the
transcript. 'You stiffed my court report-
begin questioning his next witness-al-
him and applying the facts to the law."
circuit's most publicized trial: the brib-
er, sir,' Marshall yelled, as he stalked
though he had neglected to call the jury
ery. conspiracy. and wire-fraud case
out to his chambers in high dudgeon.
back in to hear the testimony. In his writ-
RUNNER-UP: Appointed by Nixon in
against former Teamsters president Roy
Marshall can be even more stem about
ten decision after a bench trial in an ex-
1973, Allen Sharp, 50. is the only judge
Williams, co-conspirator Allen Dorf-
improprieties out of court. The judge
tortion case, he switched the name of the
ever to be reprimanded by the Judicial
man, who was murdered soon after his
made local headlines this winter when a
guilty defendant with that of the govern-
Council of the Seventh Circuit. The ma-
conviction, and three others. First Mar-
brief encounter he had had years before
ment's main witness and repeatedly re-
jor subject of the council's rebuke this
shall adeptly handled a four-week pre-
with Republican mayoral candidate Ber-
ferred to various decisions by a nonexis-
winter was Sharp's behavior during and
trial hearing on the suppression of hun-
nard Epton came to light. Epton entered
tent jury. While trying a 1980 freedom of
after an FBI investigation of his girl-
dreds of reels of evidence compiled un-
Marshall's chamber one morning in Oc-
religion case challenging a Nativity
friend (now his wife), a former secretary
der the extensive electronic-surveillance
tober 1977 and attempted to talk about a
crèche displayed in city hall, McMillen
in the U.S. Probation and Parole Ser-
campaign mounted by the government.
case before Marshall involving a com-
asked an attorney to explain the rel-
vice. She was suspected of leaking infor-
Marshall's 120-page ruling. which held
pany in which Epton had a $1.5-million
evance of citing the Fourteenth Amend-
mation to a convicted drug dealer and
that the reels of FBI wiretaps and other
stock interest. Marshall instantly showed
ment to him.
altering the dealer's probation records;
taped conversations were properly pro-
him the door, telling him in no uncertain
This winter McMillen's disorganiza-
the Justice Department declined pros-
cured, is even called "masterly" and "a
terms that he did not discuss cases ex
tion verged on the comic at the sentenc-
ecution. Sharp was also a target of the
magnificent piece of scholarship" by
parte. Epton, who is a lawyer but who
ing of tax consultant Daniel McGovern,
investigation, and he apparently sought
two losing defense attorneys. The Chica-
was not directly involved in that particu-
who had been convicted of bribing coun-
the transfer or firing of court officials
go strike force received dozens of re-
lar case, wrote Marshall a note that after-
ty tax officials in exchange for tax
who assisted in the probe.
quests from Justice Department offices
noon denying that he intended to act im-
breaks. At the start of sentencing,
In late January 1983, Chief Judge
across the country for the ruling, which
properly. "I am sorry you saw fit to em-
McMillen announced that he would not
Walter Cummings of the Seventh Circuit
many call the best review of wiretap law
barrass me in your outer office," he
call for the government to make a state-
summoned Sharp to Chicago from his
ever written.
wrote. "Although you obviously expect-
ment, since the case had ended under a
court in South Bend, Indiana, for a
The ten-week trial of Williams et al.
ed less of me, I certainly expected more
plea agreement. According to an observ-
dressing down about the affair. Accord-
had the potential for becoming a circus.
of you." Marshall replied in kind: "If
er, U.S. attorney Scott Turow did a dou-
ing to Cummings, who talked to local
"You had a bunch of hotshot defense
you believe that you were conducting
ble-take. The prosecutor then struggled,
newspapers after the reprimand. Sharp
lawyers capable of creating disorder-
yourself in accordance with the canons,
as politely as possible, to remind McMil-
was also ordered to surrender three hand-
all [of them] assuming they could man-
so be it. But judges have canons, too.
len that there had been no plea agree-
guns to federal marshals. The guns were
handle a supposedly inexperienced pros-
They are explicit and I try to live by
ment-before or during the jury trial
the best of several that had been entered
ecutor [Douglas Roller]-and a year's
them."
by James Warren
over which McMillen had just presided.
as evidence in Sharp's court; he had
worth of FBI wiretaps," says one de-
There are no statistics on reversal rates
commandeered the three guns for him-
fense attorney. The whole thing could
WORST
among the circuit's judges, but McMil-
self and ordered the rest destroyed. A
have been ensnarled in delays and confu-
len has had some noteworthy ones. Ac-
week after his meeting with Cummings,
sion." Marshall held the reins tightly,
THOMAS McMILLEN, 67
cording to a lawyer who argued a com-
Sharp received a formal letter of repri-
especially when an attempt was made at
Appointed by Nixon in-1971
plex truth-in-lending case in 1975 in
mand.
jury tampering. After five jurors re-
Judge Thomas McMillen is a man given
which class certification was sought,
by James Warren
CHICAGO SUN-TIMES
THE AMERICAN LAWYER
JULY/AUGUST 1983
109
EIGHTH CIRCUN
ing to bring cases before MacLaughlin
tion. The substantial publicity attending
assistant U.S. attorney's opening argu-
because he never screwed up. He was the
the case will no doubt be beneficial to
ment by pronouncing that he thought the
best prepared of the judges and knew
counsel's practice."
government had committed a tort against
what he was doing.' Charles Hvass of
MacLaughlin has a reputation as a
all inoculated adults and should consider
Minneapolis's Hvass, Weisman & King,
heavy sentencer in white-collar-crime
paying the claims by selling a subma-
echoes the consensus, saying, "Mac-
cases. In 1981 the Eighth Circuit af-
rine.
Laughlin is one of those rare judges who
firmed his four-year maximum sentence
Yet despite their populist bent, both
actually listens to both sides and then
of a man convicted of obtaining more
Wright and Lord are conceded to be
issues a fair, learned decision."
than $150,000 in fraudulent loans even
among the most innovative and intelli-
In 1981 the EEOC brought suit on be-
though the defendant had no prior con-
gent judges in the Eighth Circuit. In con-
half of a Minneapolis police captain
victions. It also affirmed the judge's ad-
trast, William Hungate of the Eastern
challenging several Minnesota statutes
ditional two-year sentence of the defen-
District of Missouri is less controversial,
that required police and fire department
dant for threatening a witness. Mac-
but more consistently off the mark in his
employees to retire at age 65. The feder-
Laughlin himself admits to a tendency
rulings. Not biased so much as inept,
al Age Discrimination and Employment
to be more lenient with other criminals.
Hungate's poor grasp of legal issues and
Act of 1978 prohibits mandatory retire-
"A poor kid from the ghetto who is con-
courtroom procedures has often led to
ment before age 70, and MacLaughlin
victed of a minor crime deserves to be
bizarre rulings and unnecessarily harsh
ruled that state and local governments
treated differently than someone con-
treatment of lawyers.
were not exempted. Seventeen months
victed of a major white-collar crime,"
The root of Hungate's weakness, law-
Arkansas
lows
later, the Supreme Court noted Mac-
he says.
yers say, is his inexperience. A six-term
Minnesota
Laughlin's opinion when they voted 5-4
MacLaughlin is also a good adminis-
U.S. representative who was appointed
Missouri
to overturn a similar Wyoming statute in
trator. According to the court clerk's of-
to the federal bench by Carter in 1979,
Nebraska
a case filed by a game warden.
fice, he usually maintains the lowest
Hungate seems unfamiliar with the law
North Dakota
South Dakota
Steven Fredrickson, the assistant city
pending caseload of all the active judges
as it is practiced, even though he chaired
attorney who was co-counsel for the po-
in the district of Minnesota. "His docket
a House subcommittee that revised the
lice department, says, "MacLaughlin
is essentially current," says calendar
rules of criminal procedure during his
ran a most efficient and effective court.
clerk Patricia Giel. The Eighth Circuit
last years in Congress. "You would
He thoroughly did his homework-[he]
elected MacLaughlin to its Council on
think he would know them," gripes one
read the briefs and asked pertinent ques-
Judicial Administration in 1981.
assistant U.S. attorney in St. Louis.
BEST
tions. From his trial conduct, it was im-
The most frequent criticisms of Mac-
"But it was pretty clear when he came
possible to tell how he would rule."
Laughlin are that he is distant and cool
[to the bench] that he hadn't practiced in
HARRY MACLAUGHLIN, 56
"I still think he's wrong," Frederick
on the bench and that he covets a spot on
a while and that his [congressional] staff
Appointed by Carter in 1977
adds, "but I came away very im-
the appellate bench. "MacLaughlin's
had done a lot of the work." (Although
There are many contenders for best dis-
pressed."
pretty bland in court," says one plain-
Hungate spent two years as a partner
trict court judge in the Eighth Circuit,
tiffs' attorney, voicing complaints also
with the St. Louis firm of Thompson &
and most of them are in Minnesota. Sen-
made by other lawyers. "He just sits
Mitchell before being confirmed, "he
ior judge Edward Devitt is considered an
there and looks at you with that slicked-
was not a full-time litigator," according
archetype of judicial propriety. Donald
back hair of his. He's also too concerned
to partner David Ulmer. The last time
Alsop is superb on evidentiary ques-
about what the Eighth Circuit thinks of
Hungate litigated on a full-time basis
tions. Robert Renner is a criminal proce-
him. He's always looking over his shoul-
was in 1968, as a partner in the Troy,
dures expert. And Paul Magnuson wins
der at [them], and that's probably why
Missouri, firm of Hungate & Grewach.)
praise for coupling a warm courtroom
he's reversed so rarely."
Attorneys complain that Hungate's in-
manner with an incisive mind. But only
Despite these minor gripes, Mac-
experience is compounded by his inabil-
Minneapolis's Harry MacLaughlin wins
Laughlin's straightforward and studious
ity to admit to it. "Most of the other
universal praise for his fairness, consis-
manner seems to win almost universal
judges, if they don't know something,
tency, and scholarship.
praise, even from the losers in his court-
take a break and jump into the books,
"I think he's one of the best judges
room. Says one litigator who not long
says a former clerk for another district
I've ever worked in front of, says Rob-
ago lost a $575,000 patent infringement
court judge in St. Louis. "He doesn't
ert Tansey, Jr., a plaintiffs' attorney
case before the judge, "MacLaughlin
seem to want to admit when he doesn't
with Minneapolis's Stacker, Ravitch &
epitomizes what I want in a judge. He's
know something. It leads to unpredict-
Simon. "Everything in his court is han-
bright and he's concerned about getting
able rulings.' In one recent case the
dled in a fair and orderly manner. Mac-
the facts before a jury. MacLaughlin's
U.S. attorney's office argued that it
Laughlin has a combination of trial expe-
not a gladhander. He studies the
should be allowed to admit four virtually
rience, bench experience, and intelli-
law.'
-by James Lyons
identical photographs into evidence. The
gence that is very rare."
defense objected. Rather than rule one
MacLaughlin's career as a judge is
WORST
way or the other, Hungate admitted two
tied to the political career of his former
of the photos and excluded two. In an
law school classmate and partner, Wal-
WILLIAM HUNGATE, 61
asbestos case in 1982, Hungate insisted
ter Mondale. Mondale also played a sub-
Appointed by Carter in 1979
that the multiple defendants choose one
stantial role in securing MacLaughlin's
If worst judges were ranked solely on the
lawyer to review jury instructions.
appointment to the Minnesota Supreme
Harry aughlin
size of their mistakes, district judge
"There was only one problem," recalls
Court in 1972 and in his appointment to
Scott Wright of the Western District of
an attorney. "The defendants had third-
the federal bench five years later. But
Losing lawyers often walk out of
Missouri would win the nomination for
party claims against each other.'
MacLaughlin has dispelled any doubts
MacLaughlin's courtroom thinking they
his handling of the Hyatt case, the largest
Behind Hungate's apparent unwilling-
that he is merely the beneficiary of politi-
have received a fair hearing, though in
group of claims ever filed in Kansas
ness to own up to his inexperience is a
cal patronage. "1 would have no hesitan-
April the judge decided a case in a way
City. In that case, which resulted from
rigidity lawyers say is extreme. In a dis-
cy about bringing any type of case before
that pleased none of the parties yet dem-
the collapse of two skywalks at a Hyatt
trict whose turnaround of civil and crimi-
him," says Richard H. Kyle, a partner at
onstrated his common sense. A Minne-
Regency Hotel, Wright became so intent
nal cases is the fourth-fastest in the coun-
St. Paul's Briggs and Morgan who repre-
sota couple had been arrested and put in
on certifying a novel, mandatory class
try, Hungate still stands out as fast. But
sented Minnesota's Republican congres-
alcohol-detoxification centers for three
action in 1982 that he sought out a class
lawyers protest that his speed makes him
sional delegation during the state's latest
days based on orders from a county
representative himself, contacted him on
arbitrary-"He never knows why he
reapportionment. The reapportionment
judge after the couple's 15-year-old
an ex parte basis, and-acting on his
does anything," complains one-and
fell to the courts after the state legislature
daughter complained to two social work-
own motion and contrary to the wishes of
that he resorts to unorthodox practices
failed to settle on a plan, and a three-
ers that her parents were alcoholics. The
most of the plaintiffs-certified the
to keep the docket moving. In an attempt
judge panel, including district judges
couple were not given notice or a hearing
class. He was later reversed by the
to streamline his caseload, Hungate
MacLaughlin and Alsop and circuit
prior to their detention, nor was other
Eighth Circuit Court of Appeals, al-
passed out "bench passes" to each
judge Gerald Heaney, drew up a scheme
evidence sought before they were con-
though the court praised Wright's "cre-
counsel at a jury trial, and insisted that
dividing Minnesota's eight districts into
fined. The couple sued the county, seek-
ative" approach.
they use one each time they approached
four urban and four rural areas. "There
ing $1 million in compensatory dam-
Judge Miles Lord of Minnesota, for
the bench for a conference. 'If you ran
was a great deal of pressure that the reap-
ages.
his part, would emerge as a front runner
out of passes, tough luck," recalls an
portionment not be seen as a political
MacLaughlin agreed with the jury-
for continuing to favor plaintiffs in dis-
attorney. In other cases, Hungate has
decision," says Douglas Blomgren, a
the couple's due process rights had been
crimination, antitrust, and consumer
limited time for major arguments-in
state attorney who worked on the case.
violated. But he reduced the award to
suits. In a recent sex discrimination class
one instance alloting the state of Missou-
"What we got was a principled and fair
$260,000 and denied the plaintiffs' at-
action against the University of Minne-
ri half an hour to argue a motion that
decision." The plan was upheld by the
torneys a multiplier in their fee requests,
sota, for instance, Lord allowed the class
could have cost the state $9 million.
Supreme Court.
awarding them a total of $64,000. In his
to be defined so broadly that it included
"Things you take for granted in other
James Morrow, who spent five years
opinion, he explains: "The trial
even women who never applied to the
courts, you can't in Hungate's," says
as an assistant U.S. attorney in Minne-
was not unusually difficult or com-
university faculty because they feared
one civil rights attorney. "He expects
apolis and who is now a county court
plex.
The risk of the litigation is
they might be discriminated against. In a
the impossible."
judge, recalls that "it was very frustrat-
offset by its effect on counsel's reputa-
1980 swine flu case, Lord preempted the
But it is Hungate's handling of the
110
THE AMERICAN LAWYER
JULY/AUGUST 1983
massive St. Louis desegregation case
He is considered bright and hardwork-
130-page opinion in 1979 which found
tice Warren Burger wrote the 5-3 major-
that has provoked the most controversy.
ing-"I don't think the guy has got a
the tests to be racially discriminatory and
ity opinion.
If he signs the proposed settlement he
bladder," complains one attorney who
banned their use in the California public
Peckham's courtroom demeanor is
has taken under advisement, the case
has been subjected to long court ses-
schools.
also praised by attorneys on the other
will become the first interdistrict deseg-
sions. But for now, as another St. Louis
Armando Menocal, the Public Advo-
side of the bar. "He is, without excep-
regation suit ever settled voluntarily. But
attorney puts it, "He's the one judge [in
cates attorney who litigated the case on
tion, a gentleman of the old school,"
many question the way in which the
Missouri] most lawyers would not like to
behalf of the parents, characterizes
says James Hewitt, the federal public de-
judge brought about the settlement.
appear before." by Cynthia Mayer
"Larry P" as "the most significant case
fender in San Francisco. His calm but
When Hungate inherited the nine-year-
in the country for the black communi-
firm hand was in evidence during the
old case from district judge James Mer-
ty." Explains Menocal, "The use of IQ
1981 trial of Larry Layton, who was
edith, now on senior status, the state of
tests comes up over and over; they are
Missouri and the St. Louis city school
NINTH CIRCUIT
charged with conspiring to murder Con-
the linchpin of the theory that blacks are
gressman Leo Ryan, who was killed
board had already been found liable for
genetically inferior. Peckham's ruling
while conducting an investigation of the
segregating the city's schools. Under
should have a major nationwide impact,
Jonestown cult. Peckham was credited
Hungate, 15 of the 23 school districts in
if it is upheld.' The case is now on ap-
with controlling the volatile courtroom,
and around St. Louis agreed to bus stu-
peal to the Ninth Circuit, and despite
particularly after the jury announced it
dents as part of an interim, voluntary
praise for Peckham's decision, it, too, is
was hung.
plan. What hadn't been decided-and
deemed a likely candidate for reversal by
Peckham, 63, came to the federal
what was expected to drag on in the
the Supreme Court.
bench with a nearly ideal mix of legal
courts for years-was the liability and
Menocal says he was particularly im-
experience. He worked as an assistant
compliance of the school districts and
pressed that Peckham didn't sidestep any
U.S. attorney in San Francisco from
the compliance of the state, which had
of the difficult or controversial issues in
1948 to 1953, and just prior to his ap-
objected to the cost of the proposed set-
Arizona
the case-as he could have done proce-
pointment, served as a superior court
tlement.
California
durally-but ruled that the California de-
judge for Santa Clara County. Between
Even some of Hungate's supporters
Idaho
Montana
partment of education had intended to
public-sector posts, Peckham was a gen-
say they were surprised by his solution to
Nevada
discriminate. Peckham also awarded
eral practitioner in small firms in Santa
the threatened delay. Instead of holding
Oregon
$975,000 to Public Advocates and attor-
Clara and San Francisco. His varied
a hearing to determine the school dis-
Washington
neys from San Francisco's Morrison &
background, lawyers say, enables Peck-
tricts' liability, Hungate jumped ahead
Alaska
Hawaii
Foerster who helped on the case.
ham to maintain good relations with
and, in March 1982, held a "remedial
Guam
Although decisions like "Larry P,"
prosecutors and defense lawyers, as well
hearing" to determine how-if the dis-
N. Mariana Islands
Valtieri, and Stanford Daily have given
as corporate attorneys and public interest
tricts were found liable-they would
Peckham a liberal image, attorneys who
advocates.
have to comply with the desegregation
have appeared before him say they can
Although cases are assigned randomly
order. Worse, Hungate excluded the dis-
BEST
detect no political bias in his trial rulings
in the Northern District, Peckham has
tricts and their counsel from participat-
or decisions. He ruled against black
had more than his share of large and im-
ing in the hearing: Only the lawyers for
ROBERT PECKHAM, 63
plaintiffs in the San Jose school-desegre-
portant ones. He presided over the asbes-
the city, the state, and the plaintiffs, as
Appointed by Johnson in 1966
gation case in 1981 and in 1982 held that
tos cases consolidated in San Francisco
well as three court-appointed experts,
Were one to examine the Supreme Court
the promotion of a black employee under
and the Iranian-assets litigation before
were allowed to make presentations on
reversal record of Robert Peckham,
the Berkeley fire department's affirma-
they were stayed. In both instances he is
proposed remedies. (In an appeal by the
chief judge of the Northern District of
tive-action program constituted reverse
praised for insisting that most pre-trial
districts, the Eighth Circuit Court of Ap-
California, one would not be very im-
matters be consolidated before him, in
peals upheld Hungate's remedial hear-
pressed. His two most celebrated deci-
what he describes as a mini-multidis-
ing, but warned the judge that he could
sions-the Stanford Daily case, involv-
trict-litigation approach. He is monitor-
not force the districts to comply with his
ing search and seizure in the newsroom,
ing the San Francisco police depart-
plan unless they were found liable.)
and Valtieri, a significant extension of
ment's compliance with a consent decree
In August Hungate issued a prelimi-
equal protection jurisprudence to the
signed as a result of a race and sex dis-
nary order announcing that he planned to
poor-ended in reversal there. Why,
crimination suit. "He has literally
dissolve and consolidate the school dis-
then, are attorneys who have appeared
dragged the police department into the
tricts if he found them liable. Interpret-
before Peckham so eager to designate
twentieth century," says one plaintiffs'
ing this as the action of a judge whose
him the best federal district judge in the
attorney involved in the suit.
mind was already made up. lawyers for
Ninth Circuit?
The only consistent criticism of Peck-
the districts and the city rushed to the
"His opinions are superb, I might
ham's performance is that he is too slow.
settlement table and began negotiating a
even say brilliant," asserts one litigation
"He's very careful and thoughtful, and
proposed permanent settlement: a 15
partner in San Francisco. "More than
he agonizes over a decision, says Pub-
percent minority enrollment in each
that, they are sound.' That verdict
lic Advocates attorney Menocal, echo-
school, with a goal of 25 percent in the
seems almost unanimous among attor-
ing the comments of many others. "Per-
next five years. "The prospect of a trial
neys familiar with Peckham's decisions,
sonally," he adds, "I think that's
before him was so unattractive that set-
despite his reversals. "That's not what
good.
tlement was better," claims the attorney
matters,' says one Peckham proponent.
Peckham's relatively slow pace and
for one of the parties.
What is important, the lawyer argues, is
the attention he devotes to his written
The argument that Hungate had al-
that Peckham drafts the kind of opinions
opinions may reflect his sense of history.
ready decided the issue of the school dis-
that get to the Supreme Court in the first
He is an avid amateur historian, and the
tricts' liability is supported by the fact
place and that, when reversed, often at-
founder of the Historical Society for the
that he had earlier recused himself from
tract vigorous dissent from Marshall,
Northern District Court of California,
hearing the liability phase of the case on
Brennan, and some of the middle-of-the-
which arranges public programs on the
the ground that his experience in enforc-
road coalition. And Peckham's record in
history of the court and awards research
ing city and state compliance with the
the Ninth Circuit Court of Appeals, a
grants. Only three other courts in the
interim plan had prejudiced him. (The
bench that has reviewed his opinions for
Robert Peckham
country have similar organizations: the
court of appeals later sent the case back
the 17 years he has been a district court
U.S. Supreme Court and the Second and
to the Eastern District, where the chief
judge, is excellent. The circuit court was
discrimination. Peckham is also popular
Eleventh Circuit Courts of Appeals.
judge returned it to Hungate.)
sufficiently impressed with Peckham's
with the establishment side of San Fran-
by James B. Stewart, Jr.
Lawyers say that Hungate's preoccu-
reasoning in the Stanford Daily case to
cisco's bar.
pation with the desegregation case has
adopt his opinion, word for word, as its
"He is superb in the sophisticated,
led him to neglect the rest of his case-
WORST
own, adding only two short sections be-
complicated, big-business cases that we
load. He interrupted several jury trials
fore sending it up to the Supreme Court.
tend to handle, says Morrison & Foer-
JACK TANNER, 64
midway through in order to hold deseg-
That 1976 ruling, which held that in
ster senior partner Robert Raven. Raven
Appointed by Carter in 1978
regation hearings. "His defense is that
determining the validity of search and
came before Peckham earlier this year in
The worst district judge in the Ninth Cir-
he's handling the desegregation case,"
seizures, newsrooms were protected by
the consolidated Bank of America and
cuit-where there is no shortage of can-
says the lawyer on one such case. "[But]
the First Amendment as well as the
Crocker National Bank cases, in which
didates-is Jack Tanner of the Western
it makes it very difficult for a jury to
Fourth Amendment, was hailed by First
the companies argued they were exempt
District of Washington. "The tragedy of
remember what the evidence is." The
Amendment advocates; Justice Byron
from legislation prohibiting interlocking
Tanner," says one local practitioner, "is
attorney says that he and others have ap-
White's reversal has drawn far more
bank and insurance-company director-
that it was patently clear before his ap-
pealed their cases on this ground; at least
criticism from constitutional scholars.
ates. Peckham ruled in favor of the com-
pointment that he would make a terrible
one such appeal claims that Hungate be-
Peckham's penchant for courageous,
panies' position, based on his reading of
federal judge.
came so confused by the interruption that
ground-breaking decisions was evident
the legislative history, even though his
Tanner, who spent more than 20 years
he considered the same question twice-
most recently in the highly publicized
opinion makes clear that his personal
as a criminal defense lawyer in Tacoma,
ruling differently each time. "He's a lit-
"Larry P" case, a challenge by the par-
sympathies were to the contrary. That
has few defenders, even among his for-
tle erratic," concludes the attorney.
ents of six black children to the use of IQ
decision was reversed by the Ninth Cir-
mer colleagues. "He is arbitrary and cap-
Some lawyers believe that Hungate
tests for school placement. After a six-
cuit, but the Supreme Court sided with
ricious," contends one criminal de-
will become more consistent with time.
month trial, Peckham issued a sweeping
Peckham's position this June. Chief Jus-
fender in Seattle. "He is heavy-handed
THE AMERICAN LAWYER
JULY/AUGUST 1983
111
NINTH CIRCUIT, continued
second case in several months that the
funds in this way." Six months later,
intentness on being impartial, consis-
in the courtroom, unfair, and as biased
appeals court had expressly remanded to
however, she repudiated her testimony
tent, and courteous. In Winder's case,
against criminal defendants as any pros-
a different judge.
and Tanner was confirmed. In his im-
these important if bland qualities are en-
ecutor 1 have ever seen."
Many Seattle attorneys believe that
peachment petition Adams reportedly al-
riched by other traits: a compulsion to
Prosecutors seem no happier with
Tanner's antidefendant stance and fre-
leges that Satiacum's wife was pressured
master the details of every matter before
Tanner's performance. "The govern-
quently harsh treatment of lawyers and
into changing her testimony by Tanner's
oral argument; a talent for whittling each
ment has had to concede error in several
litigants are a kind of overcompensation
lawyer and a former county prosecutor
down to its essentials and ruling quickly
appeals where it won in the trial court,"
for having been a criminal defense law-
for Tacoma. (Neither could be reached
on them; and a quiet, matter-of-fact
asserts one Seattle assistant U.S. attor-
yer and for having weathered a difficult
for comment.)
courage that has led to some controver-
ney. "I'd say at one time Tanner's rever-
confirmation process. "He's terribly in-
The Satiacum affair caused one
sial decisions.
sal rate in criminal cases was at least 50
secure," says one Seattle lawyer who
prominent Seattle attorney, Malcolm
Winder's zeal for preparation is leg-
percent," says one criminal lawyer.
knows Tanner well. "He works long
Edwards of Edwards and Barbieri, to
endary. He typically works from 6 A.M.
"And he is unpleasant to everyone who
hours; he's trying very hard. But the re-
launch his own investigation of Tanner's
to 6 P.M. on weekdays, as well as many
appears before him. I've known Jack for
sults have not been good."
career, especially since Tanner's testi-
Saturdays, reading every memorandum
many years, and I like him outside the
mony in another proceeding had helped
courtroom. But he puts on the black robe
convict one of Edwards's clients. "Ini-
and he just goes berserk."
tially, I supported the idea of Tanner's
Lack of judicial temperament is a fre-
appointment," says Edwards. "I
quent complaint among lawyers who
thought it would be very good to have a
have appeared before Tanner, though he
black district court judge here. But after
is said to be less likely to explode in the
these allegations surfaced, I checked
presence of women attorneys. "Unfortu-
into some of the cases he handled. I
nately, this has more to do with sexism
looked at the briefs he filed on behalf of
than with courtesy," says one Seattle
some of his clients. They were plainly
practitioner. Prior to his confirmation,
inadequate. It was clear to me that this
Tanner riled feminists when he was
was not the kind of lawyer who should
quoted in The Tacoma News Tribune as
be a federal judge." Edwards says he
saying, "There's nothing worse or more
filed a complaint with the state bar.
obnoxious than a woman lawyer. They
Most Seattle attorneys do not expect
cry and they seek special attention.
the Ninth Circuit Court of Appeals to
More importantly, Tanner's conduct has
take action against Tanner, despite the
led to frequent tangles with the Ninth
disapproval voiced in some of the court's
Circuit Court of Appeals, whose habit of
reversals. There are those who believe
not only reversing Tanner's opinions but
that Tanner is "street smart" and, with
remanding the cases to a different judge
time, will improve. His recent ruling that
is giving rise to an unusual body of law.
conditions in a Washington state prison
The most recent and notorious exam-
were unconstitutional drew praise from
ple, lawyers say, is the case of Manuel
the criminal defense bar, although it was
Larios, who was convicted of conspiring
reversed by the Ninth Circuit. And Tan-
to distribute heroin in a jury trial before
Jack Tanner
ner does have flair-he's been known to
David Winder
Seattle district judge Thomas MacBride.
sport a mink bow tie in court.
Tanner handled the sentencing, impos-
Tanner's reputation continues to be
But praise for Tanner is hard to find.
and affidavit and, in many cases, deposi-
ing the maximum prison term of 15 years
clouded by allegations that surfaced dur-
The overwhelming consensus is that on
tion, before oral argument. "It's incredi-
and the maximum fine of $25,000, even
ing his confirmation hearings. Hank Ad-
almost every measure of judicial abili-
ble,' says Robert Wallace, a Utah assis-
though the probation officer's sentenc-
ams, national director of the Survival of
ty-intelligence, demeanor, and fair-
tant attorney general. You come in for
ing report stated that the evidence
American Indians Association, says he
ness-Tanner is an embarrassment to the
oral argument, and you'll be talking
against Larios was "inconclusive."
recently filed a petition for Tanner's im-
bench.
-by James B. Stewart, Jr.
along, and he'll say, 'Yes, that's on
This did not deter Judge Tanner. Al-
peachment with the chief judge of the
point four of your memorandum. In
though he refused to read the trial pro-
Ninth Circuit. Adams charges that Tan-
one instance, recalls Robert Anderson of
ceedings, Tanner announced at the sen-
ner committed perjury prior to his ap-
TENTH CIRCUIT
Salt Lake City's Berman & Anderson,
tencing hearing that Larios was the
pointment and then engaged in a coverup
he was midway through settlement nego-
"ringleader of the whole operation." In
to assure his confirmation. (The Ninth
tiations in a $25,000 contract dispute
Colorado
its reversal, the court of appeals wrote:
Circuit would not confirm or deny the
Kansas
when he discovered that Winder had
"At one point in the first sentencing
existence of the complaint.)
New Mexico
read the depositions. "He quizzed the
hearing, Judge Tanner himself said, 'I
The allegations stem from Tanner's
Oklahoma
other counsel about the deposi-
don't know who Pasqualito [the ring-
longtime representation of Bob Satia-
Utah
tions," says Anderson. "I was aston-
leader's name) is, and yet later in the
cum, a controversial Puyallup Indian
Wyoming
ished. I must admit I hadn't read them
same hearing, without having received
who built a highly profitable cigarette
[since taking them]."
any further incriminating evidence, the
business by claiming that the reserva-
Winder himself admits he's "a nut
judge concluded that Larios was the
tion's sovereign status exempted the sale
about preparedness," adding self-depre-
ringleader. Moreover, there was no evi-
of cigarettes there from state and federal
catingly, "maybe because I know I'm
dence presented at the trial that Larios
tax. During Satiacum's subsequent pros-
not that bright.' But lawyers say that he
was the ringleader and the study for the
ecution for tax evasion and other felonies
uses his preparation not as a crutch but as
sentencing hearing also does not support
in 1974, Tanner testified that he had nev-
a way to shape cases in their early stages,
this conclusion.
er allowed any of Satiacum's property to
weeding out extraneous evidence and
"Judge Tanner further displayed his
be placed in his name in order to avoid
causes of action. He speeds trials along
lack of familiarity with the case," the
seizure by federal and state tax authori-
by challenging lawyers to argue him out
court of appeals continued, when he said
ties and he specifically denied that Satia-
of, rather than into, positions. He pares
that "he had not heard evidence [on an-
cum's Lincoln Continental had been reg-
away a case and shapes it up," explains
other] point during the trial. Counsel
istered in his name. The Seattle Times
BEST
partner Thomas Quinn of Salt Lake's
noted that Judge Tanner had not heard
subsequently obtained a copy of the car's
Ray, Quinney & Nebeker. The result is
the trial. The judge queried, 'I didn't
registration showing that it had been reg-
DAVID WINDER, 51
that Winder's cases move quickly and
hear the trial?' Counsel replied, 'No,
istered to the judge.
Appointed by Carter in 1979
that lawyers are more aware of what is
you didn't sit at the trial, Your Honor,
Tanner has declined to discuss his tes-
David Winder, 51, is not the most im-
expected of them. "I'm extremely inter-
and the court asked, 'Who did?'
timony or his relationship with Satia-
posing of the Tenth Circuit's district
ested in getting out quick decisions,"
The appeals court held that Tanner
cum, but he told a reporter for The Taco-
court judges. That distinction might go
says Winder, adding, "I'm going to start
had abused his judicial discretion and
ma News Tribune, "I did never, at any
to the excellent, scholarly, but short-
ruling more from the bench.'
took the case away from him. "Under
time, register that car in my name or
tempered Frederick Dougherty of Okla-
Singer V. Wadman, Winder's most
the circumstances of this case, we find
know of it until afterward." However,
homa, now on senior status, or to the
controversial case, has also been his
that a different judge should do the re-
The Seattle Times later reported that a
equally good Richard Matsch of Colora-
greatest challenge in terms of mastering
sentencing," the appeals court said.
copy of the registration was mailed di-
do, known among local assistant U.S.
complex litigation. The 1979 suit, decid-
"Judge Tanner was unreasonable in his
rectly to Tanner shortly after it was filed.
attorneys as "King Richard."
ed last September, was brought on be-
initial refusal to wait for a transcript and
In a story published this February, the
Rather, Winder, appointed to the Salt
half of the family of a religious fanatic
adamant in his belief that Larios was the
Times also reported that the Satiacum
Lake City bench in 1979 by President
shot to death by state police while being
ringleader, even in the face of little, if
matter delayed Tanner's confirmation.
Carter, is the best of "a new breed of
arrested on a number of charges.
any, evidence to that effect. We, there-
During the routine FBI investigation of
younger, more professional judges," as
Asking for damages of more than
fore, believe that he could not reason-
Tanner, the agency discovered that Sa-
partner Gordon Roberts of Salt Lake
$110 million, Singer's counsel, Wyo-
ably be expected to ignore his conclusion
tiacum's wife had testified in June 1977
City's Parsons, Behle & Latimer puts
ming's famed Gerry Spence, alleged that
when faced with the question again."
that "this was not the first vehicle which
it-a judge whose style is marked less by
Utah state officials, as part of a Mormon-
According to court records, this was the
Mr. Tanner purchased for us, using our
colorful outbursts than by a businesslike
controlled theocracy, had conspired
SEATTLE TIMES (TANNE)
against his client, who was an excom-
decks, dismisses a lot of cases." (In-
Estes striking Justice White. Winder re-
In another controversial case, Winder
municated Mormon, to deprive him of
deed, lawyers say Winder's low reversal
sponded by grilling potential jurors indi-
has been praised by The New York
his constitutional rights.
rate-only 7 of some 1,600 cases have
vidually on whether they had seen the
Times, among others, for a precedent he
The suit named some 20 state and
been overturned-would be even lower
news reports.
set when he ruled that Secretary of the
county employees ranging from medical
if he decided fewer on summary judg-
"The jury process took longer than
Interior James Watt could not reconsider
examiners to Governor Scott Matheson
ment. Peggy Tomsic, one of the judge's
the trial," comments U.S. attorney
the decision of his predecessor, Cecil
and discovery lasted close to two years.
clerks, estimates that one-third of the
Ward. "He gave the defendant every
Andrus, to forbid mining on lands bor-
What [Winder] did was wise," notes
cases she works on are resolved through
chance." In fact, the trial and voir dire
dering Utah's Bryce Canyon National
Robert Burton of Salt Lake's prominent
summary judgment.)
each took a day. Yengich, defense coun-
Park. (The ruling was not appealed.)
insurance defense firm, Strong & Hanni.
Winder has conducted other contro-
sel in the case, praises Winder for the
But it is Winder's consistency and at-
"He let everybody have as much discov-
versial cases calmly and with a minimum
voir dire and for his compassionate sen-
tention to even the seemingly unimpor-
ery as they wanted." Had he limited it,
of fuss. The trial of Newton Estes, the
tencing, which in this case resulted in
tant cases that lawyers stress. "He's an
Burton explains, a successful appeal
antibusing and antipornography zealot
Estes's getting just ten days in jail, a
exceptionally courteous judge, scholarly
would have been more likely.
convicted in 1982 of assaulting Supreme
$500 fine, and 24 months of probation.
and facile," says Daniel Berman, a
But in the fall of 1982, the case came
Court Justice Byron White, for instance,
"If there's a man or woman who ago-
prominent securities partner at Salt
to an abrupt halt. Winder, after having
was preceded by local news stations' re-
nizes more about sentencing, I have yet
Lake's Berman & Anderson. "I saw him
read through hundreds of pages of depo-
peated screenings of a news clip showing
to see them," he says.
handle an extremely taxing pro se mat-
sitions, took a defense motion for sum-
mary judgment under advisement.
Spence, in turn, moved to have Winder
recuse himself on two grounds: that his
old law firm, Strong & Hanni, was rep-
resenting a minor defendant in the case
There are no ifs, ands, or
(no one had objected to this before) and
that another defendant, the governor,
buts. This is an absolute
had appointed Winder to a state court
judgeship several years earlier.
Winder refused to recuse himself and,
in a painstaking 217-page opinion which
must book for every person
quotes extensively from the depositions,
he dismissed the case on summary judg-
ment. "Winder is probably the only
with any interest in national
judge Spence hasn't intimidated, con-
cludes Ross Anderson of Salt Lake's
politics and the United States
Berman & Anderson.
For Spence, the dismissal was a sur-
prising blow. He was originally very
Congress.-Fred Wertheimer
happy to have drawn Winder, says a law-
President of Common Cause
yer familiar with the case, since the
Fred Wertheimer. Just one of the more
judge is the only nonpracticing Mormon
of politics in America has more rewrit-
district court judge in Salt Lake City and
than 40,000 people who bought the last
ing and updating than any previous
edition of this Washington bestseller.
ALMANAC-and it's better than ever!
thus a potentially sympathetic ear for the
plaintiffs. Spence is now appealing. He
The 1984 ALMANAC OF AMERICAN
1200 fact-filled pages
recently criticized Winder for the alleged
POLITICS is the indispensable hand-
conflicts in an interview in the Trial Di-
book for everyone who participates in
Shrewd profiles of the 535 members
plomacy Journal magazine. Winder
political life writes about it
of Congress and each state governor
points out that it took Spence close to
wants to influence it
or understand
On-target descriptions of each state
two years to object. "I'm very sensitive
it. What makes the book remarkable is
and congressional district
to claims of bias," says the judge. "If
the ability of Michael Barone and Grant
I'd been asked to get off the case up to a
Ujifusa to reflect the insider's view of
Thousands of politically relevant
year and a half before then [at the begin-
Capitol Hill while providing-with the
facts and figures, organized for easy
ning of the case], I would have [consid-
access
same astonishing ease and accuracy
ered it]. Reached for comment, Spence
-vivid portrayals of each of the 435
State maps showing new congres-
concedes, "I think he's a pretty good
congressional districts.
sional districts
judge anyway. Obviously I wasn't
pleased with his ruling, but that doesn't
Now published by NATIONAL JOUR-
Invaluable political analysis and pre-
mean he's not a good judge.'
NAL, this seventh edition of the "bible"
dictions
While most lawyers dismiss Spence's
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If for any reason you are not completely satisfied with your
however, say Winder made the right de-
1984 ALMANAC, just return it for replacement or refund.
Softcover ALMANAC(s)
cision. "Singer was a courageous deci-
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SC84
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For D.C. orders: Add 6% sales tax
for Utah. "It took tons of research to lay
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Winder's tendency to make crucial
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plaintiffs to meet
He clears the
THE AMERICAN LAWYER
JULY/AUGUST 1983
113
TENTH CIRCUIT, continued
take the bench if she thought she could
ing to then-U.S. attorney Joseph Dolan,
administrative skills. "He ran that place
ter, with a bellicose plaintiff. [Winder]
do better.
Winner invited the jury to a party where
like a Swiss train," says former U.S.
was classically what you want to see. He
Though Winner is conservative on so-
he appeared sporting a "Free Kiko" T-
attorney Dolan admiringly. These quali-
gave the guy a chance, but he didn't get
cial issues, lawyers say it is often diffi-
shirt (Kiko was the nickname of the de-
ties, however, are less relevant to his
carried away. If every federal judge were
cult to predict which side he will choose
fendant). "This was when he was still
performance as a senior judge. Winner
as good as Winder, we would have a lot
to favor. After one assistant U.S. aftor-
scheduled to try the retrial, mind you,"
has cut back on his caseload and report-
less problems." As a state court judge, a
ney's first trial before Winner, the judge
adds Dolan.
edly told several attorneys that he plans
post Winder held for three years before
went around telling everyone the assis-
But the scheme soon fell apart. The
to retire this summer. But most lawyers,
coming to the federal district bench, he
tant was "the greatest thing since sliced
defense counsel discovered the ex parte
noting that Winner has made such an-
earned the nickname "Decent Dave"
bread,' according to one source. But at
meeting and, in an appeal that eventually
nouncements before, consider his retire-
Winder.
the start of a more recent trial, Winner
went to the Eighth Circuit (the Tenth Cir-
ment unlikely. Says one attorney, 'The
Not surprisingly, if there is one qual-
threatened to fine the same government
cuit had quickly recused itself), succeed-
only way they're going to get him out of
ity lawyers say they find too much of in
attorney for being late; ignored his notice
ed in getting a dismissal of the three
that courtroom is to carry him out.
Winder, it is his concern that all parties
of appeal on a ruling, saying, "I regard it
charges tried by Winner. In a strongly
by Cynthia Mayer
get a fair hearing. "I frankly thought he
[as] frivolous. There is no such order";
worded opinion, the circuit court stated
gave [Spence] too free a rein,' com-
and summoned Colorado U.S. attorney
that prosecutorial and judicial miscon-
plains one defense lawyer in the Singer
Robert Miller to his chambers to com-
duct had led the defense to agree to a
case. "He gave me a little too free rein,
plain about the assistant U.S. attorney's
mistrial and that a retrial would consti-
ELEVENTH CIRCUIT
too. I kept talking-he's just such a po-
behavior. (Most of. this took place before
tute double jeopardy. The appeals court
lite individual.'
the defense counsel and defendant had
also noted that "other than the prosecu-
Nevertheless, adds this attorney,
even arrived.)
tion's and judge's 'belief,' the present
"I've won and lost and wen and lost [in
Such complaints about Winner's tem-
record contains no evidence of threats
Winder's court], and 1 always leave
perament and partiality pale before those
[against] or intimidation [of the jury] oc-
thinking. 'Hey, I didn't get hammered, I
cases in which his conduct has forced the
curring during the trial.
had a fair hearing.
circuit court to step in and restrain him.
Winner was never formally censured,
-by Cynthia Mayer
The most famous example is U.S. V.
but his credibility was badly shaken by
Martinez, a politically and racially
Martinez. The judge removed himself
charged trial in 1981 in which a Chicano
from the retrial and nine months later,
Alabama
Florida
WORST
activist was accused of possessing and
upon turning 70, resigned as chief judge,
Georgia
mailing explosives. In the first two days
though he remains active. "I think Fred
FRED WINNER, 71
of the trial, Winner ruled against every
realized he made a bad mistake in Mar-
Appointed by Nixon in 1971
motion of the defendant's. On the third
tinez, says a Denver lawyer who is a
In 1978 Denver district judge Fred Win-
day, apparently believing that the pros-
longtime friend of Winner's. "I tried to
BEST
ner flew to Salt Lake City to finish the
ecutors case was still lacking, Winner
tell him how dangerous it was, but he's
cases of Willis Ritter, the ailing chief
summoned the prosecutors, court per-
very courageous and he will do what he
WILLIAM HOEVELER, 61
judge of the Utah district and a legend-
sonnel, and several government wit-
wants." Kenneth Padilla, Martinez's de-
Appointed by Carter in 1977
ary bad jurist. "Winner took up the
nesses to an ex parte conference at his
fense counsel, remembers Winner's
Not only those who emerge victorious
slack-appropriately," notes Utah U.S.
hotel (the case was tried in Pueblo, Colo-
mood differently. "He got caught with
from Judge William Hoeveler's court-
attorney Brent Ward, who had filed a
rado). There, according to a later appel-
his pants down and was just furious,' he
room praise him. According to several
1,000-page petition for a writ of manda-
late court ruling. Winner outlined a plan:
asserts. "He started sending letters to
Eleventh Circuit lawyers, even clients
mus against Ritter just before the judge
The prosecutors would wait for the de-
everyone-to me, to Dolan. He said Mr.
who have lost before Hoeveler as civil
died. Since then Winner, 71, has
fense counsel to present their case in or-
Martinez was a threat to the country and
litigants or who are convicted and sen-
matched the judicial exploits of Ritter
der to discover their strategy and then
that if something wasn't done there
tenced in criminal trials often report
and earned a reputation as a smart, inju-
move for a mistrial. which Winner
would be burning throughout the coun-
afterward that the judge had given them a
dicious judge determined to have his
try."
fair shake. You can get a better acco-
own way.
The public uproar caused by his con-
lade for a judge,' observes a civil law-
No one denies Winner's intelligence,
duct in Martinez has not had a marked
yer whose losing client saw it that way.
wit, knowledge of the law, or ability to
effect on Winner's style. This May Win-
Tall and gaunt-faced (lawyers are for-
write well. "His opinions make great
ner was forced to recuse himself from the
ever likening him to Abraham Lincoln),
reading." says one Denver attorney.
trial of six inmates charged with inciting
Hoeveler is also thoughtful. incisive,
"It's just that I never agree with them."
a prison riot after he joked in a speech to
evenhanded, and unfailingly gracious to
Nor does anyone dispute the fact that the
law review staffers at the University of
the lawyers who come before him. In the
Tenth Circuit Court of Appeals usually
Denver that despite their hard work, the
Dade County Bar Association's biannual
does agree with him. Rather. lawyers
prisoners' attorneys "were going to
poll on judges, Hoeveler has been rated
contend that Winner is dangerous be-
lose," according to a student's later tes-
the best, by a wide margin, since 1978.
cause he is cunning enough to stay just
timony. (All six inmates were acquit-
Lawyers say that while Hoeveler
within the bounds of judicial discretion.
ted.) This April his comments in open
knows how to keep firm control over his
This, they argue, allows Winner to ha-
court drew a rebuke from Tenth Circuit
court, he also gives attorneys latitude to
rass lawyers, break rules, and almost al-
Court of Appeals Judge Monroe McKay.
try their own cases-letting them assist
ways get away with both. "He's Machi-
Just before ruling against the plaintiff in
in jury selection, for example, while
avellian," says a former Denver public
an employment discrimination case,
most other judges in his courthouse in
defender who is now in private practice.
Winner made this pronouncement: "The
Florida's Southern District do not. Hoe-
"He can twist and distort and pretty
only way I know that any school board
veler was once a trial lawyer himself: He
much cover anything up."
member or employer can absolutely be
performed mainly insurance defense
In court, Winner is an intimidating
sure of avoiding discrimination cases is
work, specializing in architects' liability
figure: A former trial attorney, and a
to hire only handicapped females having
suits, when he was in private practice
very successful one, he has never shed
as grandparents a Black, a Chicano, an
with the Miami firm of Knight, Peters,
the role of advocate and frequently de-
American Indian, and an Oriental, who
Hoeveler. Pickle, Niemoeller & Flynn.
rides one counsel while conducting the
is over fifty years of age.' (Winner's
According to Hoeveler, the idea of be-
other's suit. He polarizes every case,"
decision was upheld, despite McKay's
coming a federal district court judge had
says a former Denver district attorney.
protest that Winner's "clearly hostile at-
attracted him long before he was ap-
"In one case I couldn't do anything
Fred Winner
titude toward [the law] he is obligated to
pointed in 1977. "This sounds awfully
wrong and the other guy couldn't do any-
interpret and enforce" rendered the deci-
syrupy," he says before explaining that
thing right. He's sent people out of there
would grant. (The judge also suggested
sion suspect.)
he felt a strong sense of obligation to
vomiting."
ways in which he could force a mistrial.)
In an ongoing case, Winner provoked
society: "Being a decent lawyer was, I
Winner often threatens to fine aftor-
Winner posed a second reason to de-
more criticism when he appointed a re-
felt, a contribution-but being a judge
neys for being late and once forced an
lay the motion for a mistrial. He wanted
ceiver for the $6 million recovered in the
would be more of one."
SEC lawyer to take the stand to testify
to install hidden cameras in the court-
International Mining swindle. despite
Soon after he became a judge, Hoe-
why he didn't know that a hearing had
room to record what he believed to be the
the fact that lawyers in three courts are
veler was assigned a series of messy,
been rescheduled. (The attorney had
intimidation of jurors by courtroom ob-
vying for jurisdiction over the fund. One
politically sensitive prison-condition
complained that Winner's secretary
servers who, he indicated, may have
attorney representing the defrauded in-
cases. The oldest of those suits was filed
failed to notify him.) In a 1980 case re-
been planted by the defense.
vestors says he has filed an affidavit
in 1977 by inmates at the Broward Coun-
ported in The Denver Post, Winner re-
The next morning, the prosecution
complaining that Winner physically ex-
ty Jail who alleged that conditions at that
peatedly referred to a defendant as a
asked for a mistrial on the pretext that the
cluded him and other attorneys from a
facility were unconstitutional. The mat-
"government informer." When then-
names of two jurors had appeared in the
hearing on the selection of a receiver-
ter has never come to trial; both sides are
assistant U.S. attorney Susan Roberts
papers. The beleaguered defense counsel
the attorney claims he had to resort to
working to settle, with Hoeveler acting
objected to the phrase. the judge shot
assented, and Winner-although report-
listening through the locked doors to
as a monitor in the case. To finance Hoe-
back, "I've heard the testimony."
edly angry that the prosecutors had not
Winner's chambers.
veler's mandated improvements, a bond
When she continued to press her objec-
waited longer-scheduled a retrial for
As chief judge of the Denver district,
issue was passed, and a new jail is now
tion, Winner sarcastically invited her to
the following week. That night, accord-
Winner won praise for his long hours and
under construction. "Hoeveler has been
ROCKY MOUNTAIN NEW
114
THE AMERICAN LAWYER
a master of moving people into action,"
of Appeals held that he had not, and the
senator and was instrumental in getting
MICRO
says Bruce Rogow, a professor of law at
Kopituk convictions were affirmed in
Elliott appointed to the bench. At a state
Nova University and an ACLU general
November 1982.
Democratic convention in 1950, in blast-
FILMING
counsel who has been involved in the jail
Some lawyers do complain that Hoe-
ing the press for what he said were their
litigation. "He played on the good faith
veler can be slow to rule in civil cases,
efforts to blacken Talmadge, Elliott de-
of public officials and what he assumed
particularly on pre-trial motions. Hoe-
clared that if the "mighty moguls of mis-
and
was their own desire to do right.'
veler offers this criticism himself, com-
representation" continued in that effort,
Rogow likens Hoeveler to Frank
menting that he thinks he is less efficient
the state would punish them with legisla-
Johnson, now on the Fifth Circuit Court
than some of his colleagues. But his sup-
tion authorizing suit for "libel against
DUPLICATING
of Appeals, who is famous for his civil
porters point out that Florida Southern
society.' In 1952, when Elliott was ar-
rights decisions as a district court judge
District judges are laboring under a
guing that the county-unit system of con-
Specialists in Large
in Alabama in the sixties and seventies.
crushing load of criminal cases, with
ducting elections, which guaranteed
"There was a lot of public resistance to
civil cases almost crowded off the dock-
white rural domination of Georgia poli-
Commercial Litigation
Hoeveler's actions in the Broward Coun-
et. Hoeveler, they say, is slow because
tics, should be written into the state con-
Rates substantially below
ty Jail case-people's attitude was, it's
he gives each case the kind of individual-
your law firm's in-house
not supposed to be a hotel,' says Ro-
ized attention that many judges with
copying charges
gow. 'And plenty of other judges
more of a case-count mentality no longer
Can handle any quantity of
would'v tried to shirk it, or avoid re-
do.
documents on short notice
sponsibility for it by saying something
Peter Nimkoff, a U.S. magistrate for
Can arrange for microfilming
like, I can't help it. the Constitution
the Southern District of Florida, has had
and duplicating anywhere in the
makes me do it. But Hoeveler never did.
the opportunity to view Hoeveler from
United States
His approach was, this is what must be
the vantage point of a defense lawyer, a
Blow backs from microfilm
done. and we're going to be better peo-
prosecutor (he was chief of the civil divi-
Free pick-up and delivery in
ple for having done it." For his part,
sion in the U.S. attorney's office in the
New York City
Hoeveler just says that he thinks the pub-
Southern District), and his present role.
lic's attitude toward jails is changing:
No charge for collating,
Nimkoff says that he has seen the same
"We're slowly coming out of the Dark
model of fairness and courtesy in Hoe-
stapling and hole punching
Ages."
veler from each of those perspectives,
Services available 7 days a
The judge points to a criminal case in
week
adding that the judge "makes anyone
1979, U.S. V. Kopituk, as one of the
who believes in the possible majesty
Security and confidentiality
most demanding he has tried. A complex
of the law want to be a part of his
guaranteed
organized crime case, it involved water-
court."
-by Connie Bruck
Facilities management
front union officials and employers
FOR INFORMATION
(there were 22 defendants at the outset,
WORST
WITHOUT OBLIGATION
and 11 went to trial) who had allegedly
Call or write
participated for more than ten years in a
J. ROBERT ELLIOTT, 73
JAMES MURRAY
widespread pattern of corruption aimed
Appointed by Kennedy in 1962
DOLE DUPLICATING &
at securing control of business activity at
Judges like J. Robert Elliott of Georgia's
MICROFILM SERVICE, INC.
several major ports in the southeastern
Middle District are, fortunately, a van-
82 Beaver Street
United States. Both defense lawyers and
ishing breed. An old-line segregationist
New York, New York 10005
prosecutors in that trial offer high praise
who flaunts his deep-rooted prejudices
J. Robert Elliott
(212) 363-3333
for Hoeveler's performance. "He never
against blacks, unions, and criminal de-
plays favorites, never ruffles, and he has
fendants, Elliott is less a judge than a
stitution, he was widely quoted as say-
the patience of Job," says one of the
despot. He is often compared by lawyers
ing, "I don't want these pinks, radicals,
to Mississippi's legendary Harold Cox
and bloc-voters to outvote those who are
["Still Racist After All These Years,"
trying to preserve our segregationist
AL. July 1979], now on senior status in
laws and other traditions.
the Fifth Circuit.
Elliott's hatred for the press seems to
Over the last 21 years, Elliott-a Ken-
be as pronounced as his segregationist
nedy appointee who went on the bench in
beliefs. In 1974 Lt. William Calley came
LEONARD,
1962-has been heavily reversed (first
before him with a habeas corpus petition
by the Fifth Circuit and now by the Elev-
after being convicted by court-martial of
enth). According to Victor Navasky's
premeditated murder and assault with in-
STREET
Kennedy Justice, Elliott's reversal rate
tent to commit murder. In his opinion
in civil rights cases during the years that
setting aside the conviction, Elliott de-
Robert Kennedy was Attorney General
voted nearly 50 pages to reviewing what
AND DEINARD
(1961-1964) was 90 percent, exceeding
he deemed to be the inflammatory news
even that of Harold Cox.
coverage of Calley and his role in the My
C.B. King, a black attorney from Al-
Lai massacre, and summed up this sec-
(Minneapolis law firm of
bany, Georgia, first appeared before the
tion by saying that ''if there has ever
over 40 attorneys) has an
judge in 1962. Elliott had issued an in-
been a case in which a conviction should
junction against King's clients, Dr. Mar-
be set aside because of prejudicial pub-
immediate opportunity for
tin Luther King (no relation) and other
licity, this is it."
an attorney with 1 to 4 years
integrationists, to keep them from dem-
In the rambling and grandiloquent
onstrating in Albany. Elliott's ground
conclusion to his Calley opinion, Elliott
experience in general corpo-
for the injunction was that the demon-
declared that "war is war He illustrat-
rate practice. Candidates
strators would violate the civil rights of
ed the point by comparing Calley's mur-
local non-integrationist whites. In the 20
der of civilians at My Lai to Joshua's
should have working knowl-
years since, says King, "there have been
destruction of Jericho as described in the
edge of general corporate
better than fifty civil rights cases in
Old Testament, which Elliott quoted at
which I've been involved, either as prin-
length; to Ivan the Terrible's drowning
law and business planning.
William Hoeveler
cipal counsel or of counsel, and 1 can't
of the Jews; to Winston Churchill and
Background in one or more
recall a single instance where the relief
President Eisenhower's joint bombing of
prosecutors.
sought was granted by Judge Elliott. It
German cities; and, in fullest exposition,
of the areas of securities,
After nearly seven months of trial,
was always a matter of having to go to
to Union General William Tecumseh
debt and equity financings,
Hoeveler encountered a novel problem
the appellate court. And with the excep-
Sherman's acts of violence against Con-
when-four days after jury deliberations
tion of four or five of those cases, the
and commercial transactions
federate civilians in his march through
had begun-a juror became psychotic
circuit court either reversed or remand-
Georgia during the Civil War. Elliott
is also desirable. Strong
and had to be discharged. Over the
ed."
closed with this paean to Calley's mar-
unanimous objections of defense coun-
There was ample indication before El-
academic credentials and
tyrdom: "He was pummelled and pillo-
sel, Hoeveler substituted an alternate ju-
liott was appointed that he might make
ried by the press./He was taunted and
professional references re-
ror, thus violating one of the federal
the federal bench into a political podium.
tainted by television./He was reproached
rules of civil procedure. He accompa-
A Democratic national committeeman
and ridiculed by radio./He was criticized
quired.
nied his order with a careful opinion
from 1946 to 1956, Elliott led the walk-
and condemned by commenta-
explaining why the bending of the rules
out of the Georgia delegation at the 1948
tors
was necessary. The defense moved for a
Democratic National Convention in pro-
Elliott ruled Calley's conviction inval-
Send resume in confidence to the atten-
mistrial, unsuccessfully, and the central
test of the party's stance in support of
id and ordered him freed in September
tion of Byron E. Starns, Leonard, Street
issue in the Kopituk appeal became
civil rights. He was a floor leader for
1974. One year later, the Fifth Circuit
and Deinard, 1200 National City Bank
whether Hoeveler had erred in substitut-
Georgia's segregationist governor, Her-
found Elliott in error on all grounds and
Building, Minneapolis, MN 55402.
ing the juror. The Eleventh Circuit Court
man Talmadge, who later became a U.S.
ordered Calley back to prison.
WIDE WORLD (ELLIOTT)
THE AMERICAN LAWYER
JULY/AUGUST 1983
115
ELEVENTH CIRCUIT, continued
mandamus, which the Eleventh Circuit
Greene has not earned his popularity
ing injunctions, and we're appealing.
For Elliott, Calley was the exception
granted in July 1982, ordering Elliort to
by mincing words in his opinions or or-
But there's no question that he is a highly
to the rule. Hundreds of other habeas
convene the panel. When Elliott had still
ders. George Saunders, the partner at
competent and an outstanding judge.
corpus petitions have come before him
failed to do so in December 1982, the
Chicago's Sidley & Austin in charge of
-by James B. Stewart, Jr.
over the years, but no one familiar with
Eleventh Circuit again ordered him,
the AT&T antitrust litigation, describes
his court can recall a single petition, oth-
warning him-albeit tardily-that "this
Greene as "a superb judge. You
WORST
er than Calley's, that was granted. El-
court does not take lightly the issuance of
couldn't want anything more." But
liott's memory is hazy on that point. "I
a writ of mandamus addressed to a Unit-
Saunders concedes that Greene was
JUNE GREEN, 69
don't remember if that was the only
ed States District Judge. Elliott has fi-
largely responsible for settling the case
Appointed by Johnson in 1968
one," he says, explaining, "It's been
nally taken steps to comply.
on very favorable terms for the govern-
There are several arguments against
twenty-one years I've been on the
The rest of the South has undergone a
ment. "He went out of his way, in his
naming June Green the worst district
bench."
transformation since Elliott came on the
rejection of our motion for summary
judge in the D.C. Circuit. Most lawyers
Ronald Spivey, an inmate on death
bench. But in Elliott's chambers-where
judgment, to indicate that he thought we
say that her performance has improved
row in the Georgia state prison system,
a portrait of Robert E. Lee hangs in hon-
were guilty. The Reagan Administration
somewhat since she was named worst by
petitioned Elliott for habeas in 1980. El-
or-and in his courtroom, time stands
was just taking shape then, and I think he
this magazine three years ago. Her court-
liott not only denied the petition without
still. "Elliott's mind stopped around
was afraid the government might be
room demeanor is better-she apparent-
a hearing but also denied Spivey's re-
1864, just before Appomattox," says
thinking about dropping the case. He in
ly no longer relies on written notes to
quest for his 81-year-old father's deposi-
Albert Horn, an Atlanta lawyer who has
effect told the government not to drop
herself to keep from losing her temper.
tion to be taken so as to preserve it for
known Elliott for many years. "I've ap-
it," says Saunders. "He had a lot of
One partner at a major D.C. firm who
appellate review. In 1981 the Eleventh
peared before about a hundred federal
power, and he used it."
Circuit summarily reversed Elliott on the
judges, in different parts of the country,
Both AT&T and government lawyers
question of the deposition, reversed Spi-
and many of them are very conservative
praise Greene's administration of the
vey's death sentence, and remanded the
in their thinking. But I have never met
massive case, which they say is a'model
case to Elliott for an evidentiary hearing
one that compares to Elliott. He simply
of how complex litigation can avoid the
on issues relating to Spivey's guilt or
will not uphold federal law. I believe he
quagmire that IBM became. "He kept
innocence.
is the worst sitting federal judge there
our feet to the fire," says government
Elliott opened the new hearing by say-
is."
lawyer James Denvir III. "We'd ask for
ing, "We are not here because this is my
by Connie Bruck
two weeks and he'd give us two days.
idea to he here. We are here because the
But, you see, he would give us some-
Court of Appeals has said that this hear-
thing-he never demanded the impossi-
ing should be conducted." He ended it
by finding against Spivey on all issues.
D.C. CIRCUIT
ble." When the trial started in January
1981, it was only three months behind
After the Eleventh Circuit vacated El-
the schedule set by Greene in August
liott's findings in August 1982 and re-
BEST
1977.
manded the case for a further "full and
Although AT&T was forced to divest
fair" hearing. Elliott recused himself.
HAROLD GREENE, 60
itself of all local operating companies,
(The next district judge to preside over
Appointed by Carter in 1978
Saunders believes that the company re-
the hearing found that Spivey's Fifth and
Three years ago, when we named Harold
ceived a fair hearing in Greene's court.
Sixth Amendment rights had been vio-
Greene the best district judge in the D.C.
"I had the feeling that he had very strong
lated and ordered that the prisoner be
Circuit, our reporter wrote that "some
views from the beginning,' says
given a new trial. That decision has been
believe it is too soon to evaluate
Saunders, "but I always thought his
affirmed.)
Greene's performance on the federal
mind could be changed. For example,
In civil cases where Elliott's consider-
bench." The only question that now re-
the existence of economies of scale, or
able biases are not stirred. lawyers say he
mains is whether it is too soon to call the
our position on the adverse impact [that
is not a bad judge-smart enough, and
1978 Carter appointee a legend.
the dismantling of AT&T would have]
even-tempered. But in those cases that
Since 1980 Greene has presided over
on international trade: I believe he came
June Green
incite his passions, justice in Elliott's
the breakup of American Telephone &
around on these points, even though they
court is reduced to a game. Civil rights
were not consistent with his original
appeared before Green recently says he
lawyers say that one of his favorite ploys
views.'
found her "courteous and well pre-
is avoidance: He simply refuses to
"My reaction was one of relief when
pared."
schedule cases on his docket that he does
[the PATCO] case was assigned to Judge
Yet there remains one overriding rea-
not like.
Greene," says Richard Leighton, the
son for naming Green the worst: Every
Elliott seemed to be trying out that
partner at D.C.'s Leighton, Conklin, Le-
other D.C. district court judge is demon-
tactic in a new context in June 1982,
mov, Jacobs and Buckley who led the
strably better. Barrington Parker may be
when William Henry Hance petitioned
defense for the now-defunct air traffic
the most cantankerous, Charles Richey
for a stay of his execution. Elliott de-
controllers' union. "He is well known
the most controversial, and Louis Ober-
layed holding a hearing for several days,
for his outstanding judicial temperament
dorfer the most overbearing, but all have
then conducted one-approximately 40
and fairness," Leighton continues.
their champions. Green has personal ad-
hours before the scheduled execution-
"This was vitally important to us, be-
mirers, but even they concede she is
which he ended by saying he was taking
cause this was one of the most highly
easily the weakest of the district judges
the matter under advisement. On the
charged judicial proceedings I've ever
on the D.C. bench.
afternoon of the last day before the
seen. The courtroom was packed; the
Soon after her appointment to the fed-
planned execution, he had still done
press was all over us."
eral bench by Johnson in 1968, Green
nothing. The Eleventh Circuit issued a
Leighton, like AT&T's Saunders. did
acquired a reputation for being intellec-
mandamus over the telephone, ordering
not get the result he wanted, but neither
tually ill-equipped for a federal judge-
Elliott to rule, according to Patsy Mor-
did the government. In his opinion,
ship. One veteran of Green's courtroom
ris, the ACLU's death-penalty case
Greene refused to jail the union leader-
complains, "I've won four cases before
monitor in Georgia. Elliott denied the
ship and denied the federal govern-
Judge Green and all four decisions have
stay: but at 6:30 that evening, the Elev-
ment's request for a permanent injunc-
been reversed. The last time I won, I
enth Circuit granted it. (Hance gained
tion against the strike, but he also fined
called the opposing counsel to congratu-
more than time. In January 1983 the
the union for violating the original tem-
late him." Others have had similar expe-
Eleventh Circuit reversed Hance's death
porary restraining order. "He didn't let
riences, the attorney contends: "She's
sentence. However, it refused to grant
either side get away with anything,"
just not very bright. She tries to be fair,
relief on issues of his guilt or innocence.
says Leighton. "The government came
but she goes overboard. She oversimpli-
Hance's lawyers have now filed a peti-
in with a lot of rhetoric. He cut right
fies, especially in complicated, technical
tion for cert to the Supreme Court on that
through it. His opinion is superb. It's
matters.
decision.)
being cited everywhere, and is easily the
Some D.C. attorneys say that Green's
Asked about last year's Spivey man-
Telegraph, which many attorneys de-
most important to emerge from the air-
reaction to numerous reversals of her
damus, Elliott replies, "I don't remem-
scribe as the most significant act of judi-
traffic strike."
early decisions has been to be as vague
ber about that. Indeed, he seems to nei-
cial statesmanship since desegregation.
Greene is currently presiding over
as possible when explaining her reasons
ther recall nor heed such rebukes from
He also refereed the 1981 showdown be-
Freddy Laker's antitrust suit against
for a particular ruling. "My theory is
the higher court, but instead grows more
tween the Reagan Administration and
eight international airlines and McDon-
that she figures she has a fifty-fifty
intransigent with the passage of time. In
the air-traffic controllers in U.S. V.
nell Douglas, and there has been some
chance of getting the right result, so she
November 1981 Atlanta lawyer John
PATCO. And, according to attorneys on
grumbling among defense counsel. Pan
just leaves most of the reasoning out,"
Myer filed a motion before Elliott on
both sides of the aisle, Greene handled
Am counsel Frederick Turnage, a part-
says an attorney who has appeared be-
behalf of his client, who is black, to have
both these challenges with the same firm
ner in the D.C. office of Cleary, Gott-
fore Green several times. Whatever the
a Section 5 claim under the Voting
but gracious control that had consistently
lieb, Steen & Hamilton, attributes that to
motivation behind the judge's brevity,
Rights Act heard by a three-judge panel,
earned him the D.C. bar's highest rating
the substance of Greene's rulings. "He
Green's scanty opinions have often
as the act specifies. When Elliott denied
during his seven years as chief judge of
hasn't ruled for me one damn time," he
failed to meet the standards of the D.C.
it, Myer filed a petition for a writ of
the D.C. superior court.
says. "He's issued some very far-reach-
Circuit Court of Appeals.
116
THE AMERICAN LAWYER
WILLARD VOLZ (GREENE)
JULY/AUGUST 1983
UPI (GREEN)
In 1978 the circuit court remanded a
Green seemed to assume that Barnes was
ever there was a case that had no doubt
attributes the harshness of the circuit
case to Green because it was "unable to
represented by his former attorney, who
about it, it was this one. In unusually
court's opinion to the inexperience of its
uphold the district court's order without
could hardly advance Barnes's claim
strong language, the appeals court de-
authors. "These judges were newly ap-
first receiving a written explanation of its
without attacking the adequacy of his
scribed the hearing as a "travesty" and
pointed, and they just didn't understand
decision. In another action in 1977,
own work. The court concluded that "it
overturned Green's denial of Barnes's
what trial judges go through.'
Green was reversed in part because her
is not clear to us that Barnes was repre-
motion. It added one further warning:
Some lawyers in the District of Co-
order was accompanied by no explana-
sented at all at the September 18 hear-
"If the court below feels she is unable to
lumbia were hoping that Green would
tion at all for its entry. And there is little
ing."
approach this case with an unjaded eye,
move to senior status when she became
evidence, lawyers say, that Green's le-
Green later consented to the reargu-
she should recuse herself. The judge
eligible this June, thereby avoiding the
gal reasoning has improved markedly in
ment demanded by Barnes's new coun-
subsequently did just that.
complex cases which they feel have
recent years.
sel. But she refused to allot the three
Green characterizes her failure to noti-
marred her record. They were disap-
Last June, in an important test case of
hours of time requested, saying, "We
fy Barnes's counsel of the September
pointed. Although Green had earlier in-
the "whistle-blowing" statute, designed
had a full and complete hearing before,"
hearing as "an oversight," but readily
dicated she would take senior status, she
to protect the jobs of federal employees
referring to the hearing where Barnes
concedes that she had already made up
now says, "I've changed my mind. I've
who expose corruption, Green dismissed
was not represented. The circuit court
her mind before the second hearing.
been working for fifteen years and I'm
the action on an ancillary First Amend-
also took exception to Green's an-
"You'd have made up your mind, too, if
going to continue."
ment issue and apparently ignored the
nouncement at the new hearing that "if
you sat through the trial,' she says. She
-by James B. Stewart, Jr.
relevance of the statute. In its reversal,
the circuit court wrote that "unfortunate-
ly, the district court made one laconic
ruling only: that appellant's discharge
was 'not tainted by unconstitutional im-
proprieties. Surely that cannot be
enough
A court sitting without a
jury is required
'to find the facts
specifically and state separately its con-
clusions of law thereon.
This man-
date was not satisfied by the court's sin-
gle statement." The case was remanded
EXTRA COPIES EXTRA EXTRA COPIES EXTRA COPIES
to Green for further proceedings.
During a recent challenge to a compli-
cated set of administrative regulations,
Green displayed "no real grasp of the
issues," according to one attorney in-
The American Lawyer Complete
volved in the case. First she refused.
without explanation, to grant a tempo-
Guide to Federal District
rary restraining order. Then she issued a
preliminary injunction that counsel on
both sides say was so confusing that, as
one lawyer puts it, "we [couldn't] tell
which side prevailed." Green has since
come full circle, issuing a permanent in-
The only fast, easy-to-use capsule summary of every
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Recently, Green has also displayed a
dismaying tendency to take over pro-
federal jurist. Each profile includes basic biographical
ceedings, sometimes dispensing with the
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data and a summary of the judges' major decisions
terest lawyers during a 1981 FOIA suit
seeking access to materials related to the
and other distinguishing career milestones.
resignation of former vice-president
Spiro Agnew. Without notifying the
plaintiffs' counsel, Green journeyed to
the U.S. attorney's office in Baltimore,
met with one of the defendants, and ex-
Save 20%-40% when you order 2 or more copies
amined the sought-after documents. Ac-
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the plaintiffs, she subsequently wrote an
opinion, which was inexplicably filed
under seal, exempting some of the mate-
rials from disclosure-again without no-
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tice to plaintiffs or their attorneys. In
court Green denied the plaintiffs' FOIA
2-10 copies-$26.00 ea. (20% off)
motion without giving any explanation.
Green says that the plaintiffs' lawyers
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had nothing to complain about. "This
was just a case filed by some students,"
she explains. "As far as I was con-
cerned, there was no need for counsel."
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(The action later became moot when the
government voluntarily released the ma-
terials.)
Please send me
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NAME
A more disturbing example of this
THE AMERICAN LAWYER
ADDRESS
same tendency reached the attention of
the circuit court last year in the case of
COMPLETE GUIDE TO FEDERAL
Bennie Barnes, who was convicted of
burning his common-law wife to death.
DISTRICT JUDGES.
CITY
After ordering Green to hear Barnes's
claim that his confession was involun-
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tary because he had not been adequately
$
(NY state residents
represented by his former attorney, the
appeals court found that Green held the
add appropriate sales tax.)
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hearing "without notifying appellant's
current counsel."
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"Even those present at the hearing
seem somewhat confused on this point,
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the circuit court wrote. "Judge Green
called the first witness
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She con-
ducted all of the questioning. Speaking
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to Barnes, the court urged him to testify
if he wished." At times, the court noted,
THE AMERICAN LAWYER
JULY/AUGUST 1983
117