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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. 11 The Act imposes extensive financial disclosure requirements on high level government attorneys and other federal officials, J:.1 creates an Off ice of Government Ethics, lJ establishes broad disqualification requirements applicable to former officers and employees of the federal government, .if and mandates a low ceiling on outside earned income. 2.f 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 • .21 -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 go~ernment 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, 1J most of whom are insulated from removal after a change of Administration because of constitutional J1I or statutory J_/ 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, llJ 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, ~ 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, 12.f 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 althouyh 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 pro~ibiting 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 _,_

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, .§..21 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 -a-

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 :.ttl> 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 statutm a rule or regulation of the Executive Branch, and courts may holl.d that actions of the Executive Branch are without legal

authority. The President is entitled, however, to the best le~ advocacy of government attorneys devoted to shaping the evolutia>n

of legal doctrines that will sustain the President's programs ai:i:ll 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 ehtrusted the government att9rney with an independence to determine what policies are enlightened or advance the cause of justice, and to dedicate hi.Sii 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 overruleq 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 serningly 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 profession~l opinion as X::D; the likehood that the construction will ultimately prevail. 781 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 consi~'K' 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 carefuD. 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 legall~ 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 de.termination 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 Executi~ 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 o:.t the President. Proposed changes in the Code of Professional Responsibility are in accord with this belief. .!QI · In conclusion, the government attorney must both understanW and adhere to the ethical imperative of promoting the President"s policies to avoid constitutional malfunctioning and to display ~ decent respect for the outcome of Presidential elections. The imperative stems from the constitutional right of the people ·.teal 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 prof it from greater scrutiny and colloquy. I encourage yt!llllr participation in the dialoque. FOOTNOTES

1. P.L. 95-521, 92 Stat. 1824

2. ~.,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. , Title V, codified at 5 u.s.c. §207.

5. Id. Title II, §210, codified at 5 u.s.c. app.

6. ~Armstrong v. McAlpin, 625 F.2d 433. (2nd Cir. 1980), vac. 449 U.S. 1106 (1981); See also: the Chinese Wall Defense to Law Finn 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 {O. Minn. 1982).

15. For example, rights to abortion were created in: Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton 419 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 (lq80); 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,~· 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. Ouke Power Co. v. Carolina Environmenta~ Study Group, 98 S. Ct., 2620. (1978).

19. Powell v. McCormack, 395 U.S. 486 (1969).

20. See e.g. Industrial Union Oep't v. American Petroleum Inst. U.S. 607 (1980) {benzine exposure standards); United Steelworkers v. Marshall, 647 F.2d 1189 (O.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. Prnerican 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 f'uel cycle associated with the operation of unclear power plants); Vermont Yankee Nuclear Power v. Natural Resources Defense Council, Inc., 435 U.S. 519 {1978). 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.O. 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. Geo~gia Associatton of Retarded Citizens v. McOanial, 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.o. 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. Oonovon, 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.o. Cal. 1982).

31. Ooe v. Selective Service System, 557 F.Supp. 937 (D. Minn. 1983).

32. Building & Construction Trades Dept., AFL/~IO 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. !]_., Luci en Louis et. !]_., 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. 53i, 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 Jlrnerica, 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 IJ.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}; Surrshine 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

Secreta~y 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. seg.

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 (19'79); 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. N,yquist, 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 Pare~thood 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 1 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); Enmun-0 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 1 s, Inc., 436 u.s. 307 {1978); Chambers v. Maroney, 399 U.S. 42 (1970); Cardwe11.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 1 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. ~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 t~e 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 argum~nt argument cal~ndar").

For a discussion of the problem presented by Rule 0.23 of the Second Circuit

Court of Appeals,~ 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, p~blished 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. 11 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, 11 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. Oppressive caseloads make time for trenchant reflection and mastery of records impossible. Circuit Judge Ouniway 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 cauld 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. 11 The Commission on Revision of the Federal Appellate System: A Legislative History, 11 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 1 ASA 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 (Respons1bi11t1es of a Subordinate Lawyer, ASA, 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. ROBERTSy~ 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 #___,_/___..ic....-.;t=--->&""'--~--.1----"0C...___U WHITE HOUSE ~(], ~~ CORRESPONDENCE TRACKING WORKSHEET

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Keep this worksheet attached to the original ·:incoming •etter. Send all routing updates to Central ;Reference '(Room 75, DEOB). Always return completed correspondence record to Central Fifes. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, C>.C. 20:503

June 6, 1983

LEGISLATIVE REFERRAL MEMORANDUM Legislative Liaison Officer 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 Off ice 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

Jam u for Assistant Director for Legislative Reference Enclosures . cc: Karen Wilson MU

( U.S. Department of Justice Office of Legislative Affairs

.•

Office of the Assistant Attorney General Jllt1shington. D.C. 20S30

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 TwelftR 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 l/ 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.2/ These new judgeships would result in the Ninth Circuit being almost twice as large as the next largest circuit.I/ l/ 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 proyided 'in s. 1013 for the Fifth Circuit, it would have 16 judgeships and remain the second largest. - 2 -

The Chief Justi9e recently proposed dividing th~ 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. 6/

~he 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 bane" 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 cases1 despite an increasing appellate caseload, the court is now terminating cases faster than they are being filed. l/ In his remarks on the Senate floor, Senator Gorton implied tha± 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.

!/ Na·tional Law Journal, March 28, 1983, p. 2. 5/ Congressional Record, April 27, 1983, p. S 5340. 2./ 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 Centrai 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 Off ice 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 .s 0

N6. Mariana Islands 1 .03 0

Other Admin Agencies Bank. Appeals Original Proceedings

t i=:Y I.

PPOINT'ED FOR UFE, 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--<:onscientious or ing stories about some judge for years, yet not a word lazy, fair or biased, intelligent about the judge bad appeared in the local press, beyond or dim-witted. Since the first perfunctory mention of a decision that he or she bad 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 bad 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 oi: . 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 ?f their performance, most federal judges have the results are more bipartisan. Republican presidents been vutually 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. I l I I Tauro was singled out for praise for his a background matted 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 fortwo years as an assistant U.S. bal lashing to a lawyer who has the au­ M-~·­ for settlement talks, at which he often attorney under Elliott Richardson. He dacity to continue pressing his client's - Hampsllirt Rhode Island . hands out index cards for counsel to then spent 11 years in private practice claim. "Caffrey is petty, venal. arbi­ Puerto Rico write down their high and !ow 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 juqge," 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. "l 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 \own mistrial. In 1981 the First Circuit unani­ of Norwood. According to lead defense BEST 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 :o the federal bench in Massa­ during Tauro's three years as chief legal lilation. 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 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 drugll,, 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 el\cuse 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 ha:s 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- i Hastings, and Arthur Garrity, the famed sider part of the testimony of an expert ernment 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. Poll

Wlll£ WORLD (CAFF11£Y) 'ffiE AMERICAN LAWYER 100 JULYIAlJGUST 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--«> 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 fonner prosecutors tion carefully enough: ". . .It was im­ enly applied," says one of his fonner 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 Jot 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 progovemmeot 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 Kannel tional Services, which helped change of Kramer, Levin, Nessen, Kamin & selves as 'Caffrey prisoners,· "says one civil service eums 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 none was as far-reaching in its impact as Lasker, U.S. v. Projanslcy. "There are fense lawyers, Caffrey barely listens to SECOND CIRCUIT 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 tile 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 ca5C in I 972, he made the first of lawyers have said about their experi­ 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 which . . . exist in the institution mani­ Dozens of lawyers interviewed about would recommend a sentence of 18 festly violate the Constitution and would Lasker praised him not only as a judge months. But Caffrey had learned of the 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 midst of its worst financial crisis; six cerely concerned about society's ills and handed down sentences of at least four BEST 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- · mote 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 his•light 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 tum 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-<>pens 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 agamst 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 BM/, 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 ll!EAMERJCANLAWYER JULYIAUGUST 1983 101 SECOND CIRCUIT, continued authorized a petition for a writ ~f manda­ Haight-she vacaied the bond. sociate. There, Lowe announced her de­ hundred times before, as though he were mus in U.S. v. Jose Amonio 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 tum 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 progovemment analogue to tion of a Williams Act violation. Lowe kind of naivete-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 raigned on a similar charge, which had . Cisions arc rarely reversed, however.) March 1982, Chief Judge Wilfred Fein­ WORST 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," Appoin1ed 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 "l 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 eitcellent 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 affinned 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, ern 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 affinned the order. Finally, the gov­ But at the requested hearing. he denied "Judge Lowe is half courageous and ernment argued that any remaining issue any knowledge of the whereabouts of the half crazy," says one fonner assistant regarding Cabrera· s right to counsel in records at the time the subpoena was U.S. attorney. '' l 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. 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, bectluse 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 l 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. l 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 $2-million material­ poration, in May 1981. The plaintiffs, correct," wrote Judge Thomas Meskill, from her courtroom. Several times, witness bond which had been set by represented by Stuart Wechsler of New "we are unable to affirm the decision prosecutors had discussed seeking a writ Judge Charles Haight, Jr., a colleague York's Kass. Goodkind, Wechsler & below on that ground because we find of mandamus to remove Lowe from a on the Southern District bench. Haight Labaton, were alleging that Fluor had nothing incriminating in his testimony.'' particular case (an action taken by the had set the bond just before he left on a publisbed a tender offer that was ambig­ The court also pointed out that Sigety U.S. attorney's office only once or twice five-day vacation, and the defendant uous about its cutoff date, thereby caus­ was incarcerated not for giving incrimi­ in a decade). But some argued against it, came to contest it before Lowe. After an ing shareholders to lose the chance to sell nating testimony-indeed, he'd offered believing it would only exacerbate acrimonious hearing, which was vinta$¢ 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 stiH con-

NEW YOlll

lllE AMERICAN LA WYER JULYIAUGUST 1933 103 ntlRD ctRCUrr, 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 attempt~ to tnmsfer the ~thods of~­ you have to say?' And he's right." Harry Houdini's failure to establish con­ material was irrelevant," wrote the ap­ ministrauve tnals--mcludmg 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 also wrote that the case was one of "pre­ basis upon which to form a conclusion to save time and money. WORST 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 plaintiffs 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 Schwartt, for­ Biunnoland"-a 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 Iannotti, 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 Biunnocarne in 1976 as counsel to New Jersey's then-gover­ was the judge. ls there any further reason in a prose 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 NASO 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 NASO to file for manda­ tainly, in New Jersey, where the bar has one attorney, summing up his cotn­ 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 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 "[Biunnoj is a sweet guy, but he gets the FBI. and the agent a~ed. 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, rulmg that the conviction and remanded the case. The tance. No one who has viewed the video­ come up with four questions that he'd FBl'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 dicttnent 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, B iunno pre­ fim 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 prose 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. 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 prose 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 BusifU!ss 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

1 f\A THE AMER:JCAN LA WYER to comment on lawyers' complaints that Attorneys for both the plaintiffs and opinion that Buchmeyer based his deci· he gets off the track in many trials. he the state praise Harvey's work in the FIF'IH CIRCUR' 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, 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 bar and director of the state bar but never Maryland attorney general's office when taking an active role in politics. (His se­ the case was tried, is equally compli­ 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.) Buchrneyer ed what the court expected of both sides." BEST Lawyers praise, more than any other JERRY BUCHMEYER, 49 quality, Harvey's ability to make the Appoimed by Caner 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 Te11as, Louisiana, and Charles Bernstein says, "I have seen Mississippi within its bounds and mak­ him take proffered instructions, maybe ing Georgia, Alabama, and Florida into fifty of them, and go, 'Yes on one, noon the Eleventh Circuit, a raft of new judges two, yes on three.' He just spits it out joined the Te11as bench. Jerry Buch­ almost like a machine. And his decisions meyer, appointed by Carter to the North· are fair and right under the law.'' As for ern District of Te11as 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 duced with very little help, says a former throughout the circuit for his fairness, BEST Harvey clerk: "He dido 't have his clerks independence, and intelligence. ALEXANDER HARVEY. IJ, 60 ghostwriting for him." "If I did a poll on judges, Buchrneyer 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, e11plaining, "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 se11 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 & Goldman, describes the judge as comple11 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 fLrm with a conservative repu­ ter than the lawyers involved." Dallas's Thompson & Knight-be 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 e11ception 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 corning 1957, Harvey spent his entire career pri­ tate trust: The judge "issued an e11treme· 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 perilaps 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 e11emplifies 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. "Buchrneyer spread the is­ "a lot to learn about criminal trials," but and vanous 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 · outlining it for a class." The opinion e11perienced judges. "He honestly lis­ heanngs, 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 . Coun 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 Coun 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 cenioran) 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 BuchmeY,er'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. ~leahRozen "It's obvious to anyone reading tha1 marks. UDEL llltOS. {HARVEY) TI!E AMEIUCAN LAWYER JULY/AUGUST 1983 105 FIFTH CIRCUIT, continued judge in Beaumont, Texas, the heart of pened, Pittsburgh· Coming 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 Teicas 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. · fust verdictof$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 Te:itarkana, 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. l 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 teoibly 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 CIRCUll ";; . 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 start promptly and that counsel be well ney wryly. prepared. He takes pains to clarify com­ One area in which Fisher is not pro­ plex material to make sure the jury un­ plaintiff is civil rights. Plaintiffs' law­ derstands it. "He will reduce ten min­ yers in cil(il 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 i· 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 i '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 against Buchmeyer ;s that his docket is tion case, which Fisher handled for more BEST 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 I. 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 diets 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 darn· 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 ifhe 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 VU class action brought in clares James Wilsman, a former chair­ 'Get Out of Jail Free' cards ... that ln one case now on appeal. Fisher 1976, it took two reversals-<>ne en bane 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. Priorto 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 settled for about $405,000. Under the crimination case," and the Supreme suits arising from the slaying of students WORST 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 Coming, 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 corn- In September 1978 Thomas was asked

UP

SIXTH CIRCUrr, continued a first-year associate, was paid $40,000, ment came from c:ompiiSsion 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 Car'!Y Adina Kannel tice," declares Edward Kanc!er 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 1 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, cavoli, and sentenced him to 17 years in more than two dozen attorneys who have has been a close friend of Battisti' s since prison. "Thomas held both the govern­ appeared before Battisti reveal that his the early 1950s, when the two were city ment and the defense to the highest tenure has been marred by an aggres si ve 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 stanee 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 in the steel town of Youngstown, Ohio. a year later, only a month from trial. At WORST When he graduated from Harvard Law that time Battisti called a meeting where FRANK BATIISTI, 60 School in l 950, Battisti returned to the he mentioned that the desegregation case BEST 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 proteges, and after just three years he was elevated grounds for having the case refiled," tinuing preeminence is all the more re­ bankruptcy judge Mark Sch!achet, 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-

WIDE WOIUJl THE AMEUCAN LAWYER 108 JULYIAUGUST l'!IB 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. "lt 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

UWltel~ ~~tml'Vlt U1 '-'GA &>Jvvn, ...,.. 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 insistem:e 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 anempting 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 fonner 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 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 anorney 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 perfonnance 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 anor­ sands of dollars in revenue sharing when defense. On another day, Marshall re­ respect he· s 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 F ALN 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 creche 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 in for· 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 tenns 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 pane. Epton, who is a lawyer b•Jt who ing of tax consultant Daniel McGovern, investigation, and he apparently sought two losing defense anomeys. 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 wntten. 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 cin:;us. 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 remindMcMil­ 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 supposed! y 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 Wa"en 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 among the circuit's judges, but McMil­ self and ordered the rest destroyed. A have been ensnarled in delays and confu­ WORST 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 tampenng. After five jurors re- Judge Thomas McMillen is a man given which class certification was sought, -by James Warren

CHICAGO SUN-TIMES 111E AMERICAN LAWYER 109 JULY1AUGUST 1983 ing to bring cases before MacLaughlin tion. The substallti.al 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 Mil:meapolis's Hvass, Weisman & King, heavy sentencer in white.-collar-<:rime 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 8[? challenging several Minnesota statutes ditional twq-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 oo 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 later, the Supreme Court noted Mac­ he says. yers say. is his inexperience. A six-term Laughlin's opinion when they voted 5-4 MacLaughlin is also a good adminis­ U.S. representative who was appointed to overturn a similar Wyoming statute in trator. According to the court clerk's of­ to the federal bench by Carter in l 979, a case filed by a game warden. fice, he usually maintains the lowest Hungate seems unfamiliar with the law 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. tions. From his trial conduct, it was im­ The most frequent criticisms of Mac­ "But it was pretty clear when he came BEST 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 Caner 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 'sin­ manner with an incisive mind. But only Despite these minor gripes, Mac­ experience is compounded by his inabil­ Minneapolis's Hany 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 rienc:e. 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 way or the other, Hungate admitted two tied to the political career of his former WORST 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 Caner 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 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 lawy~rs 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 Hya1t 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. '·I 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-<:ertified 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 .;:aseload, 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. ln 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

l1iE AMERICAN LAWYER 110 JUI. Yi 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-"l 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 charged with conspiring to murder Con­ Missouri and the St. Louis city school 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 the case-as he could have done proce­ pointment, served as a superior court tlement. durally-but ruled that the California de­ judge for Santa Clara County. Between Even some of Hungate's supporters partment of education had intended to public-sector posts, Peckham was a gen­ say they were surprised by his solution to discriminate. Peckham also awarded eral practitioner in small firms in Santa the threatened delay. Instead of holding $975,000 to Public Advocates and attor· Clara and San Francisco. His varied a hearing to determine the school dis­ ney.s from San Francisco's Morrison & background, lawyers say. enables Peck· tricts' liability, Hungate jumped ahead Foerster who helped on the case. ham to maintain good relations with and, in March 1982, held a .. remedial Although decisions like "Larry P," prosecutors and defense lawyers. as well hearing" to determine how-if the dis­ 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 detect no political bias in his trial rulings in the Northern District, Peckham has tricts and their counsel from participat­ BEST 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 Sail 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. l 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 pennanent 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 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. Szewan. Jr. Lawyers say that Hungate' s preoccu­ reasoning in the Stanford Daily case to cisco's bar. pauon 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 own, adding only two short sections be­ complicated, big-business cases that we WORST 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 Appoin1ed try Caner 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 Frrst the companies argued they were eicempt 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· tie 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 placemept. 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

1l!E AMERICAN LA wYER JULY1AUGUST 1983 111 l

NINTH CIRCUIT, continued second case in several months that the funds in this way'." Six months later, intentness on being impartial, consis­ in the couruoom, 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 I have ever seen." Many Seattle attorneys believe that peachrnent 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. •·rd say at one time Tanner's rever­ confirmation process ... He's terribly in­ The Satiacum affair caused one sial decisions. I 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, l checked presence of women attorneys. "U nfortu­ 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. lt was clear to me that this Tanner riled feminists when he was was 00( 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 ner does have flair-he's been known to Seattle district judge Thomas Mac Bride. 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 ofS25,000, 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 Salt Lake City's Berman & Anderson, tencing hearing that Larios was the pointment and then engaged in a coverup TEN11I CIRCUIT 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 its reversal, the court of appeals wrote: Circuit would not confirm or deny the when he discovered that Winder had ··At one point in the first sentencing existence of the complaint.) read the depositions. "He quizzed the hearing. Judge Tanner himself said, 'I _ The allegations stem from Tanner's other counsel . . . about the deposi­ don't know who Pasqualito [the ring­ longtime representation of Bob Satia­ tions," says Anderson. "I was aston­ leader's name I is,' and yet later in the cum, a controversial Puyallup Indian 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 Satiacwn'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 partner Thomas Quinn of Salt Lake's noted that Judge Tanner had not heard subsequently obtained a copy of the car's BEST 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 TribUM, "l 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. comple:ii: 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 e:ii:pected 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

SEA Tt1.£ TIMES fT ANNEl 11 11 I"\ ~ •UPVfrA.N l AWV'FJf 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 J ,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 Wan 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 antipomography 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 tum, 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, had appointed Winder to a state court buts. This is an absolute 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, f.. 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 happy to have drawn Winder, says a law­ Congress.-Fred ~EJ!!!~~!!!'!~ 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· than 40,000 people who bought the last ing and updating than any previous district court judge in Salt Lake City and edition of this washington bestseller. thus a potentially sympathetic ear for the ALMANAC-and ifs better than ever! 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· • Shrewd profiles of the 535 members conflicts in an interview in the Trial Di­ book for everyone who participates in Congress and each state governor plomacy Journal magazine. Winder political life ... writes about it ... of points out that it took Spellce 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 • Thousands of politically relevant I'd been asked to get off the case up to a Ujifusa to reflect the inside(s view of facts and figures. organized for easy year and a half before then [at the begin· Capitol Hill while providing-with the access ning of the case], I would have [consid· 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 PLUS! A bonus from National Journal! Two special 1984 election issues of NATIONAL YES! Send me: claims of conflict as frivolous, some Amount Item JOURNAL will be yours free-a $19.00 value! ·------· contend that the case contained legiti­ --Hardcover ALMANAC(s) mate questions of fact that a jury should N9tional Journal a-tee: @ $35.00 each --HC84 have been allowed to decide. Most, If for any_..,.. you aie not~ utlsfled with your however, say Winder made the right de­ 1984 ALMANAC, just murn It tor repl-1 or relllnd- -5oftcover ALMANAC(s) cision. "Singer was a courageous deci· @ $22.50 each -- SC84 sion," says Brent Ward, U.S. attorney For O.C. orders: Add 6% sales tax for Utah. "It took tons of research to lay Shipping & Handling({t $2.50 per book ___ to rest the issues at the summary judg­ ment stage. It's not popular for a judge to TOTAL-- rule on summary judgment," he adds. 0 I enclose a check (payable to ALMANAC 1984) "Gerry had a far-out theory," says 0 Charge my: I Quinn. "He just wanted to get the case O Visa 0 MasteiCard 0 American Express to. a jury. Some judges would let any­ Accou Expiration_ thmg go to trial. Judge Winder-if de­ fense counsel is willing to make the mo­ tions-won 'I." Ronald Yengich of Salt Lake's O'Connell & Yengich puts it more plainly: "Winder's got balls N""'"------­ enough to piss people off." ettyAddres:l..------______s1a1..___ Zip__ _ y.' inder' s tendency to make crucial rulings early in a case, together with what lawyers say is his vestigial leaning MAIL TO: ALMANAC 1984, P.O. Box 33727 Washington, o.c. 20033 from his days as a partner at Salt Lake City's Strong & Hanni, have earned him All orders shipped after July 1, 1983. the reputation of being a defendants' Please allow three weeks for delivery. ~udge. "He's one of the ten best judges Interested in ordering more than 2 copies? m the country," says Richard Giauque I Call 1-1300.424.2921 1or special discounts! of Salt Lake's Giauque & Williams, who I (In o.c. call: 857-1491) cos was h~~lf a rival for Winder's judge­ ship. 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THE AMERICAN LAWYER rut. YIAUGtlST 1913 113 TENTH CIRCtJfT, 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. attor­ 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 pane 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 anorney 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 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 anorney, 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 courtJ, and I always leave perament and partiality pale before those [against} or intimidation [of the jury I 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 Maninez. a politically and racially Maninez. The judge removed himself charged trial in 1981 in which a Chicano from the retrial and nine months later, activist was accused of possessing and upon turning 70, resigned as chief judge, WORST 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 Ni:con 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 ner flew to Salt Lake City to finish the ecutors' case was still lacking, Winner tell him how dangerous it was, but he's BEST cases of Willis Riner, 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 Caner in 1977 ary bad jurist. "Winner took up the nesses to an ex pane 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 Judjle William Hoeveler's court­ anorney 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 Riner 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 e~ploits of Riner 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't 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 che 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 l 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 Freel Win- 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 attor­ 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 pretei1t 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 NEWS 1 1 A 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 stll.te Nova University and an ACLU general November 1982. · Democratic convention in 1950, in blast· counsel who has been involved in the jail Some lawyers do complain that Hoe· ing the press for what he said were their FILMING litigation. "He played on the good faith veler can be slow to rule in civil cases, eff0rts 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· was their own desire to do right." veler offers this criticism himself, com· representation" continued in that effort, and Rogow likens Hoeveler to Frank menting that he thinks he is less efficient the state would punish !hem with legisla­ Johnson, now on the Fifth Circuit Court than some of his colleagues. But his sup­ tion aulhorizing suit for "libel against of Appeals, who is famous for his civil porters point out that Florida Southern society." ln 1952, when Elliott was ar­ DUPLICATING 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've 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 Southem 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 Soulhern District), and his present role. • No charge for collating. lic's attitude toward jails is changing: Nimkoff says that he has seen the same stapling and hole punching "We're slowly coming out of the Dark model of faimess and courtesy in Hoe­ Ages." veler from each of those perspectives, • Services available 7 days a The judge points to a criminal case in adding that the judge "makes anyone week 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, WITHOUT OBLIGATION and 11 went to trial) who had allegedly WORST Call or write participated for more than ten years in a J. ROBERT ELUOTI, 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 E1llotl (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, "J 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 Cin:uit. Elliott· s hatred for'fthe 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. ln 1974 Lt. William Calley came 1962-has been heavily reversed (first before him with a habeas corpus petition LEONARD, by the Fifth Cin:uit and now by the Elev­ after being convicted by court-martial of enth). According to Victor Navasky's premeditated murder and assault with in· Kennedy Justice, Elliott's reversal rate tent to commit murder. In his opinion STREET in civil rights cases during the years that setting aside the conviction, Elliott de­ Robert Kennedy was Attomey General voted nearly 50 pages to reviewing what ANDDEINARD (!961-1964) 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 finn 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, Or. 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 I 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 Hoevel. cipal counsel or of counsel, and I can't of the Jews; to Winston Chun:hill 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 federate civilians in his march through and commercial transactions 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· tyrdom; "He was pummelled and pillo­ academic credentials and 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 te!evision.!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- explammg why the bending of the rules out of the Georgia delegation at the 1948 tors ~ ... t1 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 !11istrial. 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 m the Kopituk appeal became civil rights. He was a floor leader for 1974. One year later, the Fifth Cin:uit and Deinanl, 1200 National City Bank whether Hoeveler had erred in substitut­ Georgia's segregationis(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 IEU.lOTl"J THE AMERJCAN LA WYER JULYIAUGUST 1983 115 ELEVENTH CIRCUrr, 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 Elliott 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 er than Calley· s, that was granted. El· court does not take lightly the issuance of couldn't want anything more." But WORST 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 I bench." transformation since Elliott came on the rejection Qf 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 Hom, 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. Bue 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 then: our feet to the fire," says government Elliott opened the new hearing by say­ is." lawyer James Denvir Ill. "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 1 ble." When the trial started in January by finding against Spivey on all issues. D.C. CIRCUIT 198 l , 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 1977. manded the case for a further '"full and BEST 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 l that is not a bad judge-smart enough, and l 978 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: l believe he came 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 PATCOJ 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 lune l 982, 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 govem­ 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, l 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 1 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 1 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 l 98 l 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.

THE ~MERICAN LAWVER WILi.ARD VOLZ (GJ

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