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j^-^ S. Hrg. 105-205, Pt. 2 

CONHRMATION HEARINGS 
ON FEDERAL APPOINTMENTS 



Y 4. J 89/2; S. HRG. 105-205/ 
PT.2 

Confirnation Hearinjs on Federal Ap. . . 



k 



HEAKINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

FIRST SESSION 

ON 

CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY 



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



Part 2 



Serial No. J-105-4 



Printed for the use of the Committee on the Judiciary 




W/IK^ 



S. Hrg. 105-205, Pt. 2 

CONHRMATION HEARINGS 
ON FEDERAL APPOINTMENTS 



HEARINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

FIRST SESSION 

ON 

CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY 



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



Part 2 



Serial No. J-105-4 



Printed for the use of the Committee on the Judiciary 




U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1998 



For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-056254-6 



COMMITTEE ON THE JUDICIARY 



ORRIN G. 
STROM THURMOND, South CaroUna 
CHARLES E. GRASSLEY, Iowa 
ARLEN SPECTER, Pennsylvania 
FRED THOMPSON, Tennessee 
JON KYL, Arizona 
MIKE DeWINE, Ohio 
JOHN ASHCROFT, Missouri 
SPENCER ABRAHAM, Michigan 
JEFF SESSIONS, Alabama 



HATCH, Utah, Chairman 

PATRICK J. LEAHY, Vermont 
EDWARD M. KENNEDY, Massachusetts 
JOSEPH R. BIDEN, Jr., Delaware 
HERBERT KOHL, Wisconsin 
DIANNE FEINSTEIN, CaUfornia 
RUSSELL D. FEINGOLD, Wisconsin 
RICHARD J. DURBIN, Illinois 
ROBERT G. TORRICEi^LI, New Jersey 



Manus Cooney, Chief Counsel and Staff Director 
Bruce A. Cohen, Minority Chief Counsel 



(II) 



CONTENTS 



HEARING DATES 

Page 

Friday, Septembers, 1997 1 

Tuesday, September 30, 1997 339 

Tuesday, October 28, 1997 665 

Wednesday, October 29, 1997 919 

Wednesday, November 12, 1997 1359 

FRIDAY, SEPTEMBER 5, 1997 
Statements of Committee Members 

Specter, Hon. Arlen 1 

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

Introduction of Nominees 

Graham, Hon. Bob 4 

Prepared statement 5 

Mack, Hon. Connie 7 

Prepared statement 8 

Santorum, Hon. Rick (prepared statement) 22 

Testimony of Nominees 

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

Circuit 9 

Questioning by: 

Senator Specter 10 

Senator Kohl 12 

Senator Sessions 13 

Senator Biden 13 

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

Questioning by: 

Senator Specter 15 

Senator Kohl 17 

Senator Biden 17 

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

District of Florida 19 

Questioning by: 

Senator Specter 18 

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

District of Pennsylvania 20 

Questioning by: 

Senator Specter 21 

Senator Kohl 22 

Alphabetical List and Materl\l Submitted 

Caputo, A. Richard: 

Testimony 20 

Questionnaire 225 



(III) 



IV 

Page 

Graham, Hon. Bob: 

"Lazzara Deserves Federal Appointment," newspaper article from the 
Tampa Tribune, Jan. 7, 1997 6 

Kauffman, Bruce W.: 

Testimony 15 

Questionnaire 86 

Lazzara, Richard A.: 

Testimony 19 

Questionnaire 159 

Rendell, Marjorie O.: 

Testimony 9 

Questionnaire 25 

Specter, Hon. Arlen: 

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

Washington, DC, Sept. 4, 1997 2 

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

TUESDAY, SEPTEMBER 30, 1997 

Statements of Committee Members 

DeWine, Hon. Mike 339 

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

Radio address of the President to the Nation 352 

Introduction of Nominees 

Hatch, Hon. Orrin G 339 

Bennett, Hon. Robert F 340 

Glenn, Hon. John 341 

D'Amato, Hon. Alfonse M 343 

Prepared statements 346 

Moynihan, Hon. Daniel Patrick (prepared statements) 344 

Thompson, Hon. Fred 348 

Frist, Hon. Bill 350 

Ford, Hon. Harold E 350 

Testimony of Nominees 

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

Circuit 353 

Questioning by: 

Senator DeWine 353 

Senator Thurmond 355 

Senator Sessions 356 

Senator Ashcroft 359 

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

Circuit 355 

Questioning by: 

Senator Thurmond 354 

Senator Sessions 356 

Senator Ashcroft 359 

Senator DeWine 362 

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

District of New York 367 

Questioning by: 

Senator DeWine 367 

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

District of Ohio 368 

Questioning by: 

Senator DeWine 368 

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

Questioning by: 

Senator DeWine 368 

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

of Ohio 369 



James S. Gwin, of Ohio, to be U.S. District Judge for the Northern District 
of Ohio — Continued 
Questioning by: 

Senator DeWine 369 

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

Southern District cf New York 369 

Questioning by: 

Senator DeWine 369 

Alphabetical List and Material Submitted 

Casey, Richard Conway: 

Testimony 369 

Questionnaire 627 

Oilman, Ronald Lee: 

Testimony 353 

Questionnaire 376 

Gwin, James S.: 

Testimony 369 

Questionnaire 599 

Kimball, Dale A.: 

Testimony 368 

Questionnaire 574 

Marbley, Algenon L.: 

Testimony 368 

Questionnaire 538 

Siragusa^ Charles J.: 

Testimony 367 

Questionnaire 500 

Sotomayor, Sonia: 

Testimony 355 

Questionnaire 459 

TUESDAY, OCTOBER 28, 1997 

Statements of Committee Members 

Hatch, Hon. Orrin G 665 

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

Introduction of Nominees 

Wyden, Hon. Ron 666 

Prepared statement 667 

Smith, Hon. Gordon 668 

Prepared statement 668 

Mack, Hon. Connie 669 

Graham, Hon. Bob 670 

Prepared statement 671 

Robb, Hon. Charles S 673 

Prepared statement 674 

Warner, Hon. John W 675 

Prepared statement 676 

Bond, Hon. Christopher S 677 

Prepared statement 678 

Ashcroft, Hon. John 679 

Testimony of Nominees 

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

Circuit 680 

Questioning by: 

Senator Ashcroft 680 

Senator Durbin 682 

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

and Western Districts of Missouri 684 

Questioning by: 

Senator Durbin 684 



VI 

Page 
Rodney W. Sippel, of Missouri, to be U.S. District Judge for the Eastern 
and Western Districts of Missouri — Continued 
Questioning by — Continued 

Senator Ashcroft 691 

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

District of Virginia 686 

Questioning by: 

Senator Durbin 686 

Senator Ashcroft 691 

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

Senator Ashcroft 687 

Senator Durbin 689 

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

District of Virginia 687 

Questioning by: 

Senator Ashcroft 687 

Senator Durbin 690 

Alphabetical List and Material Submitted 

Aiken, Ann L.: 

Testimony 687 

Questionnaire 856 

Friedman, Jerome B.: 

Testimony 687 

Questionnaire 887 

Marcus, Stanley: 

Testimony 680 

Questionnaire 693 

Moon, Norman K.: 

Testimony 686 

Questionnaire 811 

Sippel, Rodney W.: 

Testimony 684 

Questionnaire 775 

WEDNESDAY, OCTOBER 29, 1997 

Statements of Committee Members 

Kyi, Hon. Jon 919 

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

Introduction of Nominees 

Kohl, Hon. Herbert 920 

Feingold, Hon. Russell D 922 

Prepared statement 923 

Durbin, Hon. Richard J 951 

Evans, Hon. Lane 952 

Moseley-Braun, Hon. Carol 953 

LaHood, Hon. Ray (prepared statement) 954 

Feinstein, Hon. Dianne 955 

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

Boxer, Hon. Barbara 1000 

Santorum, Hon. Rick 1001 

Foglietta, Hon. Thomas M 1002 

Specter, Hon. Arlen 1003 

Fattah, Hon. Chaka 1006 

Testimony of Nominees 

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

Senator Kyi 1007 

Lynn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern 
District of Wisconsin 1011 



VII 

Page 

Lynn S. Adelman, of Wisconsin, to be U.S. District Judge for the Eastern 
District of Wisconsin — Continued 
Questioning by: 

Senator Kohl 1011 

Senator Feingold 1013 

Senator Kyi 1015 

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

District of California 1011 

Questioning by: 

Senator Kyi 1016 

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

District of California 1011 

Questioning by: 

Senator Kyi 1016 

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

District of California 1012 

Questioning by: 

Senator Kyi 1016 

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

District of Illinois 1012 

Questioning by: 

Senator Durbin 1013 

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

District of Illinois 1013 

Questioning by: 

Senator Durbin 1014 

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

for the Eastern District of Pennsylvania 1019 

Questioning by: 

Senator Kyi 1019 

Senator Sessions 1021 

Senator Durbin 1026 

Senator Specter 1037 

Alphabetical List and Material Submitted 

Adelman, Lynn S.: 

Testimony 1011 

Questionnaire 1096 

Breyer, Charles R.: 

Testimony 1011 

Questionnaire 1124 

Damrell, Frank C, Jr.: 

Testimony 1011 

Questionnaire 1197 

Feingold, Hon. Russell D.: 

Letters supporting the nomination of Lynn S. Adelman from: 

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

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

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

of Justice, Madison, WI, Jan. 13, 1997 926 

Mary Lauby, executive director, Wisconsin Coalition Against Domes- 
tic Violence, Madison, WI, Jan. 17, 1997 927 

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

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

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

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

Karen M. Ordinans, chairman, Milwaukee County Board of Super- 
visors, Milwaukee, WI, Mar. 25, 1997 930 

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

Mar. 26, 1997 931 

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

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

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

2, 1997 933 

Margaret A. Farrow, State Senator, Republican Caucus Chair, Madi- 
son, WI, Apr. 3, 1997 934 



VIII 

Page 

Feingold, Hon. Russell D. — Continued 

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

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

Jan Steinbergs, executive director, Wisconsin Troopers' Association, 

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

Michael G. Ellis, Senate Republican Leader, Wisconsin State Senate, 
Madison, WI, Apr. 8, 1997 937 

Alberta Darling, Wisconsin State Senator, 8th Senate District, Madi- 
son, WI, Apr. 8, 1997 938 

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

Daniel M. Finley, county executive, Waukesha County, Office of 
County Executive, Waukesha, WI, Apr. 8, 1997 940 

Scott L. Klug, Member of Congress, House of Representatives, Wash- 
ington, DC, Apr. 9, 1997 941 

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

Thomas E. Petri, Member of Congress, House of Representatives, 
Washington, DC, Apr. 14, 1997 944 

John E. Charewicz, president, Wisconsin Professional Police Associa- 
tion, Madison, WI, Apr. 16, 1997 945 

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

Peggy Rosenzweig, State Senator, 5th Senate District, Madison, WI, 
Apr. 28, 1997 947 

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

Madison, WI, May 1, 1997 948 

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

May 1, 1997 949 

Scott McCallum, Lieutenant Governor, State of Wisconsin, State Cap- 
itol, Madison, WI, May 5, 1997 950 

Feinstein, Hon. Dianne: 

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

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

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

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

Dec. 15, 1996 959 

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

CA, Jan. 17, 1997 962 

Gary A. Condit, Anna G. Eshoo, Sam Farr, Nancy Pelosi, Howard 
L. Berman, and George Miller, Members of Congress, House of 
Representatives, Washington, DC, Jan. 21, 1997 963 

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

Washington, DC, Jan. 21, 1997 965 

Kathleen Brown, senior vice president and managing director. Bank 
of America, Los Angeles, CA, Jan. 21, 1997 966 

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

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

Curriculum vitae of Frank C. Damrell, Jr 968 

Carol G. Whiteside, director. Intergovernmental Affairs, Governor's 
Office, State of California, Sacramento, CA, Jan. 23, 1997 970 

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

Nancy Pelosi, Member of Congress, House of Representatives, Wash- 
ington, DC, Jan. 28, 1997 972 

Patrick Johnston, Fifth Senate District, Senate California Legisla- 
ture, San Francisco, CA, Jan. 28, 1997 973 

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

Washington, DC, Feb. 4, 1997 975 

Paul Locatelli, S.J., president, Santa Clara University, Santa Clara, 
CA, Feb. 6, 1997 976 

Carmen A. Policy, president, San Francisco 49ers, Santa Clara, CA, 
Feb. 7, 1997 977 

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

Feb. 14, 1997 978 

Les Weidman, sheriff"-coroner. Sheriffs Department, Stanislaus 
County, Modesto, CA, Feb. 14, 1997 979 



IX 

Page 
Feinstein, Hon. Dianne — Continued 

Letters supporting the nomination of Frank C. Damrell, Jr., from — Con- 
tinued 

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

26, 1997 980 

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

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

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

CA, Apr. 21, 1997 984 

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

CA, Apr. 23, 1997 985 

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

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

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

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

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

1997 989 

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

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

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

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

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

Washington, DC, Sept. 2, 1997 993 

Cosignatories: Ray Simon, Stanislaus County Board of Super- 
visors; Richard Monteith, California State Senator; Dennis 
Cardoza, George House, California State Assemblymen; Rich- 
ard Lang, mayor, city of Modesto; Les Weidman, Stanislaus 
County Sheriff; Jim Brazelton, Stanislaus County District At- 
torney; Tom Mayfield, chairman, Nick Blom, Paul Caruso, Pat 
Paul, Stanislaus County supervisors. 

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

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

Beach, CA, Oct. 22, 1997 996 

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

Additional remarks and a newspaper article from the Washington Post, 

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

Jenkins, Martin J.: 

Testimony 1012 

Questionnaire 1224 

Kohl, Hon. Herbert: 

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

21, 1997 921 

Massiah-Jackson, Frederica A.: 

Testimony 1019 

Questionnaire 1327 

McCuskey, Michael P.: 

Testimony 1012 

Questionnaire 1264 

Murphy, G. Patrick: 

Testimony 1013 

Questionnaire 1302 

Specter, Hon. Arlen: 

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

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

Brief filed in the Superior Court of Pennsylvania, Aug. 1, 1988: Common- 
wealth of Pennsylvania v. Robert Hicks 1027 

Judgment 1035 

Extract of a memorandum 1045 

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

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

Ware, James S.: 

Testimony 1007 

Questionnaire 1051 



WEDNESDAY, NOVEMBER 12, 1997 

Statement of Committee Member 

Hatch, Hon. Orrin G 1359 

Introduction of Nominees 

Kyi, Hon. Jon (prepared statement) 1359 

Cleland, Hon. Max 1360 

Feinstein, Hon. Dianne 1362 

Testimony of Nominees 

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

Circuit 1364 

Questioning by: 

Chairman Hatch 1365 

Senator Feinstein 1368 

Senator Grassley 1369 

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

District of California 1364 

Questioning by: 

Chairman Hatch 1365 

Senator Feinstein 1368 

Senator Grassley 1369 

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

District of Georgia 1364 

Questioning by: 

Chairman Hatch 1365 

Senator Feinstein 1368 

Senator Grassley 1369 

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

U.S. Court of Federal Claims 1365 

Questioning by: 

Chairman Hatch 1365 

Senator Feinstein 1368 

Senator Grassley 1369 

Alphabetical List and Material Submitted 

Feinstein, Hon. Dianne: 

Letter to Hon. Orrin G. Hatch, chairman. Senate Committee on the 
Judiciary, Washington, DC, from Governor George Deukmejian, 35th 
Governor of California, Los Angeles, CA, Oct. 6, 1997 1363 

Miller, Christine O.C: 

Testimony 1365 

Questionnaire 1476 

Moreno, Carlos R.: 

Testimony 1364 

Questionnaire 1417 

Silverman, Barry G.: 

Testimony 1364 

Questionnaire 1376 

Story, Richard W.: 

Testimony 1364 

Questionnaire 1442 



XI 

Page 

ALPHABETICAL LIST OF NOMINEES 
FOR FEDERAL APPOINTMENTS 

Page 

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

District of Wisconsin 1011 

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

of Oregon 687 

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

District of Cahfomia 1011 

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

District of Pennsylvania 20 

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

Southern District of New York 369 

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

District of California 1011 

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

District of Virginia 687 

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

of Ohio 369 

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

District of California 1012 

Kauffman, Bruce C, of Pennsylvania, to be U.S. District Judge for the East- 
ern District of Pennsylvania 15 

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

Utah 368 

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

District of Florida 19 

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

District of Ohio 368 

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

Circuit 680 

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

for the Eastern District of Pennsylvania 1019 

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

District of Illinois 1012 

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

U.S. Court of Federal Claims 1365 

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

District of Virginia 686 

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

District of California 1364 

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

District of Illinois 1013 

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

Circuit 9 

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

Circuit 1364 

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

and Western Districts of Missouri 684 

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

District of New York 367 

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

Circuit 355 

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

District of Georgia 1364 

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



NOMINATIONS OF MARJORIE O. RENDELL 
(U.S. CIRCUIT JUDGE); BRUCE W. 
KAUFFMAN, RICHARD A. LAZZARA, AND A. 
RICHARD CAPUTO (U.S. DISTRICT JUDGES) 



FRIDAY, SEPTEMBER 5, 1997 

U.S. Senate, 
Committee on the Judiciary, 

Washington, D.C. 
The committee met, pursuant to notice, at 9:02 a.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Arlen Specter pre- 
siding. 
Also present: Senators Sessions, Biden, and Kohl. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 
SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator Specter. Good morning, ladies and gentlemen. We will 
begin the confirmation hearings this morning. We are pleased to 
have with us four very distinguished nominees — Judge Marjorie 
Rendell, now a judge of the U.S. District Court for the Eastern Dis- 
trict of Pennsylvania, for confirmation for circuit court of appeals. 
We have former Justice Bruce Kauffman, justice of the Supreme 
Court of Pennsylvania, for the U.S. District Court for the Eastern 
District. We have Mr. A. Richard Caputo for the U.S. District Court 
for the Middle District, and Judge Richard A. Lazzara for the Mid- 
dle District of Florida. 

We had hoped to have hearings this morning for Judge Frederica 
Massiah-Jackson, and also for Mr. Bingler. I will put in the record 
an exchange of letters which I had with Senator Hatch yesterday 
asking about Judge Massiah-Jackson for her hearing today, and 
Senator Hatch's reply saying that the committee could not process 
Judge Massiah-Jackson in time for this hearing. 

Senator Hatch says: 

At your request, the Judiciary Committee has undertaken an effort to promptly 
review and process all pending Pennsylvania judicial nominees. I appreciate your 
concern about Judge Massiah-Jackson not being included. As you know, the commit- 
tee conducts its own review of nominees' writings, judicial opinions, and background 
materials. This review is, as a matter of course, thorough and time-consuming. Un- 
fortunately, Judge Massiah-Jackson did not provide the committee with her commit- 
tee questionnaire until August 15, more than a week after the other Pennsylvania 
district court nominees. 

While the committee has endeavored to complete its review of her nomination, we 
have to date been unable to do so. It is my hope that, assuming all paperwork is 
complete and fully reviewed, her nomination will be ready for consideration at the 
next Judiciary Committee judicial nominations hearings presently slated for later 
this month. 

(1) 



[The letters referred to follow:] 



U.S. Senate, 
Committee on the Judiciary, 
Washington, DC, September 4, 1997. 



Senator Orrin Hatch, 

Chairman, Senate Judiciary Committee, 

Russell Senate Office Building, Washington, DC. 

Dear Orrin: As you know, I had hoped that Judge Frederica A. Massiah-Jackson, 
a nominee to be a judge on the District Court for the Eastern District of Pennsyl- 
vania, would be able to testify at the judicial nominations hearing we are holding 
tomorrow morning. I think that Judge Massiah-Jackson would make a fine addition 
to the bench and I would like to see her nomination move forward. 

To my disappointment, I have learned that Judge Massiah-Jackson is not on the 
witness list for tomorrow's hearing. 

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

Arlen Specter. 



U.S. Senate, 
Committee on the Judiciary, 
Washington, DC, September 4, 1997. 
Hon. Arlen Specter, 
Hart Senate Office Building, 
Washington, DC. 

Dear Arlen: Thank you for your letter of September 4, 1997. At your request, 
the Judiciary has undertaken an effort to promptly review and process all pending 
Pennsylvania judicial nominees. I appreciate your expression of concern about Judge 
Frederica Massiah-Jackson's not being included on this week's nominations hearing 
agenda. 

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

Unfortunately, Judge Massiah-Jackson did not provide the Committee with her 
Committee Questionnaire until August 15, 1997, more than a week after the other 
Pennsylvania District Court nominees. While the Committee has endeavored to com- 
plete its review of her nomination, we have to date been unable to do so. 

It is my hope that, assuming all paperwork is complete and fully reviewed, her 
nomination will be ready for consideration at the next Judiciary Committee judicial 
nominations hearing, presently slated for later this month. 
Thank you for your patience. 
Sincerely, 

Orrin G. Hatch, Chairman. 

Senator Specter. I have discussed this matter with Senator 
Hatch and it is my hope we could have Judge Massiah-Jackson on 
a week after next, perhaps as early as September 16. 

As to Mr. Bingler, whose name has been submitted for the west- 
ern district, we are continuing to work on that, and we shall con- 
tinue to do so. It is my hope we will be able to ultimately bring 
him forward for confirmation. 

We have with us this morning two of my distinguished col- 
leagues, Senator Connie Mack of Florida and Senator Bob Graham 
of Florida. If you gentlemen would step forward, the committee, 
after deferring to my ranking member. Senator Kohl, would be glad 
to hear from you. 

Senator Kohl. Thank you, Mr. Chairman. I do not have a state- 
ment today, but I would like to thank you for chairing this hearing 
and I would like to put a statement into the record by Senator 
Le^hy. Senator Leahy is concerned about the pace of judicial nomi- 
nations. We currently have more than 100 judicial vacancies, and 



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

I ask unanimous consent that Senator Leahy's statement be 
made a part of the record. 

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

[The prepared statement of Senator Leahy follows:] 

Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the State 

OF Vermont 

This year the Senate has confirmed only 11 federal judges, during a period in 
which we have seen 112 vacancies. We have two nominees from the June 25 hear- 
ings who still need to be considered and reported by the Judiciary Committee and 
nominees pending on the Senate Executive calendar from as long ago as June 12. 

This is only the fifth confirmation hearing for judicial nominees that this Commit- 
tee has held all year. From the first days of this session of Congress, this Committee 
has never had pending before it fewer than 20 judicial nominees for hearings. This 
Committee's backlog has now doubled and is more than 40. Many of these nomina- 
tions, pending for longer than a year, have been re-nominated by the President after 
having been held up during the stall last year. Some of those pending before the 
Comimittee had had hearings or were reported favorably by the Committee last Con- 
gress but have been passed over so far this year as the vacancies for which they 
were nominated more than two years ago persist. The President has sent us 61 judi- 
cial nominations so far this year and is sending more each week. 

While 1 commend Senator Specter for chairing this hearing and including nomi- 
nees to the Third Circuit and District Courts in the Eastern and Middle District 
of Pennsylvania, I remain concerned for those nominees, vacancies and litigants who 
are not from a Circuit or District with an active Republican member on the Judici- 
ary Committee. Even Senator Specter was unable to have included the two other 
nominees for judgeships in the Eastern and Western Districts of Pennsylvania at 
this hearing. And while 1 am delighted to see the Committee moving forward 
promptly on nominations received at the end of July, that does not excuse us for 
having passed over and not held hearings on dozens of other nominees throughout 
the year. The Committee has 12 nominations that have been pending for more than 
a year, including seven nominations that have been pending since 1995. I am al- 
ways pleased when the Committee moves promptly on nominees, but that does not 
excuse the Committee's delay in the consideration of nominees like Professor Fletch- 
er, Judge Beaty, Judge Paez, Ms. McKeown, Ms. Aiken, Ms. MoUway and the oth- 
ers. 

We continue to fall farther and farther behind the pace established by Senator 
Hatch in the last Congress. By this time two years ago. Senator Hatch has held 
eight confirmation hearings involving 36 judicial nominees and the Senate had pro- 
ceeded to confirm 35 federal judges. 

1 have spoken often about the crisis being created by the 101 vacancies that are 
being perpetuated on the federal courts around the country. At the rate that we are 
currently going this year, more and more vacancies are continuing to mount over 
longer and longer times to the detriment of greater numbers of Americans and the 
national cause of prompt justice. We are not even keeping up with attrition. 

Chief Justice Rehnquist has repeatedly acknowledged the crisis being inflicted 
upon the federal judiciary and, I believe, upon all Americans. The Chief Justice has 
called the rising number of vacancies "the most immediate problem we face in the 
federal judiciary." The Courts Subcommittee heard testimony just yesterday from 
judges from the Second and Eighth Circuits about the adverse impact of vacancies 
on the ability of the Federal courts to do justice. The effect is seen in extended delay 
in the hearing and determination of cases and the frustration that litigants are 
forced to endure. The crushing caseload will force federal courts to rely more and 
more on senior judges, visiting judges and court staff. 

The Attorney General spoke recently about the "vacancy crisis that has left so 
many Americans waiting for justice" and noted that vacancies, filings, caseloads, 
and backlogs are all increasing and that we are experiencing an "unprecedented 
slowdown in the confirmation process" that has "very real and very detrimental im- 
pacts on all parts of our justice system." She spoke about the hundreds of appellate 
arguments being canceled and federal judges who endure entire years without hear- 
ing a single civil case. She said: "Quite simply without enough judges, our laws will 
become empty promises and 'swift justice' will become an oxymoron, and without the 



independence they need to uphold those laws, our judges will become hostages to 
politics instead of being the guardians of our principles." 

Today we will hear from a few of the highly-qualified nominees pending before 
the Committee, including one who was first nominated more than 16 months ago. 
I look forward to prompt and favorable action on each of them. 

As we enter the last weeks of this session of Congress, I urge the Republican ma- 
jority to reconsider its strategy and proceed to consider and confirm the nominees 
who are before us. 

Senator Specter. I share Senator Leahy's concern. Of course, 
there could be no complaints about this processing. These nomina- 
tions were submitted in late July and for some magical reason they 
have appeared out of turn today; at least the Pennsylvania ones 
were. I would have to ask the Senators from Florida about their 
timing. 

Welcome, Senator Graham and Senator Mack. As our custom is 
on seniority, we turn first to Senator Graham. 

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

Senator Graham. Thank you, Mr. Chairman and Senator Kohl. 
I appreciate this hearing this morning for an outstanding Floridian 
who has been nominated by the President for the Middle Judicial 
District of Florida. 

I have a full statement which I would like to ask to be submitted 
for the record. 

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

Senator Graham. In deference to the heavy schedule that you 
have, I will summarize. 

Mr. Chairman, it is a tremendous honor to introduce to this com- 
mittee Judge Richard Lazzara for your consideration as the nomi- 
nee for the Middle Judicial District of Florida. Before I begin, I 
would like to welcome Judge Lazzara and his son, Damon, who 
joins him today. 

Judge and Damon, if you would please stand up? 

[The persons stood.] 

Senator Graham. I am pleased to be joined today by my good 
friend and colleague. Senator Mack, whose tireless efforts on behalf 
of Judge Lazzara have made this hearing today possible, for which 
I extend my deep appreciation. 

Mr. Chairman, you and Senator Kohl are well aware of the criti- 
cal responsibility that we share as Members of the U.S. Senate in 
the review of those individuals who have been nominated to serve 
in lifetime positions in our Federal court system. It is vital that 
these appointments command our closest attention and scrutiny, 
which I know has been the tradition of this committee. I am cer- 
tain that in applying that scrutiny, you will be as impressed as we 
are with the qualifications of Judge Lazzara for this important po- 
sition. 

Let me just take a moment to talk about the Middle District of 
Florida. The Middle District of Florida is geographically an ex- 
tremely large judicial district, stretching some 400 miles, including 
cities such as Jacksonville, Orlando, Tampa, St. Petersburg, and 
Senator Mack's hometown of Ft. Myers. This district is projected to 
grow by more than 1.5 million citizens in the next 10 years. That 



growth is larger than the current population of 13 of our Slates 
and the District of Columbia. 

It is also a district which has had a major caseload. The criminal 
defendants per judge in the middle district, as an example, are ap- 
proximately 50 percent higher than the national average. At the 
end of 1996, there were over 1,500 criminal cases pending in the 
Middle District of Florida. Therefore, your holding this hearing 
today and adding Judge Lazzara to the bench, which will bring this 
bench to a full complement, is extremely important. 

Mr. Chairman, just briefly to review the distinguished career of 
Judge Lazzara, a graduate of the University of Florida Law School, 
he has served with distinction in a number of professional and 
community positions, as well as a long and distinguished career on 
the State judiciary. He was nominated by both Republican and 
Democratic Governors for increasing positions of responsibility in 
the State judiciary, now serving as a member of the Third District 
Court of Appeals, which is the intermediate appellate position in 
our State system. 

His performance at every level of the judiciary has met with 
overwhelming praise. He received the highest approval rating of 
any of Hillsborough County judges when he serv'^ed in that position 
in 1987, of any 13th Judicial Circuit judge when he was in that po- 
sition in 1993, and now of those colleagues with whom he serves 
as a Second District appellate judge in 1995, was selected with the 
highest approval rating. He has received many awards for his serv- 
ice. 

Mr. Chairman, I recommend in the highest form Judge Lazzara 
for his preparation, his experience, his judicial demeanor, his intel- 
ligence, his understanding of what it means to be a jurist. He will 
bring distinction to the Federal judiciary. I urge your earliest con- 
sideration of this nomination. 

Senator Specter. Thank you very much. Senator Graham. We 
appreciate your being here. 

[The prepared statement of Senator Graham and a newspaper 
article follows:] 

Prepared Statement of Senator Bob Graham 

Chairman Hatch, Senator Leahy, members of the Judiciary Committee, it is a tre- 
mendous honor to introduce Richard Lazzara for your consideration as the next 
judge in the Middle Judicial District of Florida. 

Before I begin, I want to welcome Judge Lazzara and his son Damon to Washing- 
ton. I had the privilege of meeting with both of them in my office before this morn- 
ing's hearing. Mr. Chairman, Judge Lazzara has primarily earned this nomination 
through his diligent service and distinguished legal and judicial record. But I think 
that the real measure of accomplishment in any individual's life is his or her chil- 
dren. And in this case. Judge Lazzara has been very successful. 

I also want to thank my good friend and fellow Floridian Connie Mack for his tire- 
less efforts on behalf of this nomination and his presence here today. For nearly a 
decade, I have been extremely privileged to work closely with Senator Mack. I have 
also had the good fortune of living across the street from him. 

Mr. Chairman, perhaps our most critical responsibility as a legislative body is the 
review of those individuals who are selected to ser\'e at all levels of our federal court 
system. It is vital that these appointments command our closest attention and scru- 
tiny, and I want to commend you and Senator Leahy for your faithful dedication 
to this task. In the last year alone, your leadership has led to the confirmation of 
three new federal judges in Florida — Robert Hinkle in the Northern District, and 
Alan Gold and Don Middlebrooks on the Southern District. 



I am hopeful that this hearing will be the first step toward the confirmation of 
Richard Lazzra as the newest judge in Florida's large and rapidly growing Middle 
District, which stretches 400 miles and includes the major cities of Jacksonville, Or- 
lando, Tampa, St. Petersburg, and Senator Mack's hometown of Fort Myers. It is 
projected to have more than 1.5 million new residents in the next ten years — a num- 
ber greater than the population in thirteen states. 

While not a permanent solution. Judge Lazzara's addition to the federal bench 
would be a welcome relief to the overburdened judges in one of the most under- 
served judicial districts in the nation. Criminal defendants per judge in the Middle 
District are approximately 50% higher than the national average. In fact, at the end 
of 1996, right before Judge Lazzara was nominated, over 1500 criminal cases were 
pending. 

Just as the confirmation of judicial appointees deserves our best efforts, the Amer- 
ican people served by those jurists have a right to expect judges who bring unques- 
tioned competence, strong integrity, devotion to duty, and diversity of experience 
with them to the federal bench. 

Throughout his career — as a student at the University of Florida Law School, a 
Hillsborough County attorney and prosecutor, a distinguished member of the Tampa 
Bay area legal community, and an outstanding jurist at the county, circuit, and ap- 
pellate levels — Richard Lazzara has met — and exceeded — this standard of excellence 
time and time again. 

Floridians began relying on Richard Lazzara's judgment more than twenty-five 
years ago. His record of exemplary yet humble service to others at the University 
of Florida Law School, where he bravely complemented his studies with perhaps the 
most challenging assignment of his career — the often thankless but always impor- 
tant job of dormitory resident adviser. 

Almost without hesitation. Judge Lazzara's graduation from law school was fol- 
lowed by three years of public service. He worked in the Office of the Hillsborough 
County Solicitor and then as an Assistant State Attorney. This prosecutorial experi- 
ence turned into nearly fifteen years of respected work in private practice. 

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

In ten years as a judge, his intelligence, competence, and fairness has earned him 
near-universal respect and bipartisan attention. In 1988, then-Governor Bob Mar- 
tinez, a Republican, appointed Judge Lazzara to a seat on Florida's Thirteenth Judi- 
cial Circuit. Five years later, Democratic Governor Lawton Chiles elevated him to 
the state's Second District Court of Appeal. 

His performance at every level of the state judiciary has been met with over- 
whelming praise. Judge Lazzara received the highest approval rating of any 
Hillsborough County Judge in 1987; of any Thirteenth Judicial Circuit Judge in 
1993; and of any Second District Appellate Judge in 1995. The Young Lawyers Sec- 
tion of the Hillsborough County Bar Association named him their "Outstanding Ju- 
rist of 1991-1992." And in 1990, he received the highest rating possible in sentenc- 
ing habitual offenders. 

Throughout his career, Richard Lazzara has been respected by his peers, hailed 
for his outstanding service to the people of Florida, and praised for his skill and 
competence in the legal arena. I have no doubt that this pattern of distinction will 
continue once he is invested as federal judge in the Middle District of Florida. 

Mr. Chairman, perhaps the best way for me to conclude is to express my unre- 
served agreement with an editorial that was published in the Tampa Tribune on 
January 7, 1997. I hope that the members of this Committee will share in its astute 
observation: "Richard Lazzara is just the type of federal judge the country needs." 
I agree, and urge his speedy confirmation. 

Thank you, I ask that the full text of the Tampa Tribune editorial entitled 
"Lazzara Deserves Federal Appointment" be printed in the Record following my re- 
marks. 



[From the Tampa Tribune, Jan. 7, 1997] 

Lazzara Deserves Federal Appointment 

Ask any lawyer in West Central Florida to name the best judges in the area and 
Judge Richard Lazzara's name is invariably on the list. 

The former circuit judge, now on the state's 2nd District Court of Appeal, is 
known for his keen legal mind, his calm demeanor and his efficiently handling of 



Lawyers are often awed by Lazzara's agile intellect and knowledge of the law, yet 
he is a modest man without a shred of the arrogance that sometimes afflicts those 
who put on judges' robes. An example of Lazzara's character and his devotion to the 
law was found last spring when he took time from his lofty appeals court position 
to fill in for a county judge. 

So when Sen. Bob Graham recommended Lazzara for a federal judgeship last 
year, it was hailed by judges and lawyers as an inspired choice. President Bill Clin- 
ton, upon Graham's advice, make the nomination. 

Unfortunately, the Senate did not approve the nomination during the presidential 
election year. Now President Clinton must renominate Lazzara and the Senate must 
approve the appointment. 

We don't blame the Senate for being cautious about judicial nominations. The 
country doesn't need any more liberal judges who try to set social policy from the 
bench. But Lazzara, who is known for being apolitical, is not of that stripe. His ap- 
proach to the law is conservative. He is interested in interpreting the law as it is, 
not as he might like it to be. 

Scholarly, hard-working, not given to theatrics or self-aggrandizement, Lazzara is 
just the type of federal judge the country needs. 

We urge President Clinton to renominate Lazzara to the federal bench and the 
Senate to approve the appointment of this estimable jurist. 

Senator SPECTER. Senator Mack. 

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

Senator Mack. Senator Specter, Senator Kohl, again I thank you 
for holding this hearing. I, too, am delighted to be here today to 
recommend Judge Richard Lazzara for confirmation to the position 
of U.S. district judge for the Middle District of Florida. 

This appointment comes at a crucial time for this district. I am 
going to take a moment, too, to talk a little bit about the Middle 
District of Florida because it is unique, with compelling demands. 
It stretches from Jacksonville to Ft. Myers and contains 7.8 million 
people, more than half of the State's population. These dynamics 
and the rate of growth in the State have contributed to a situation 
of crisis proportions for the district. 

The middle district currently has the Nation's eighth heaviest 
caseload, and the chief U.S. district judge, Elizabeth Kovachevich, 
has told me on numerous occasions that the current backlog is 
growing at an alarming proportion, and it is for that reason that 
Senator Graham and I are committed to addressing these prob- 
lems. 

In the meantime, the middle district is doing what it can to alle- 
viate the situation. The district recently announced an intention to 
hold an unprecedented accelerated civil trial calendar in June, 
July, and August 1998, in which judges from the Jacksonville and 
Orlando divisions will join the U.S. district judges in Tampa to as- 
sist the Tampa-Ft. Myers division with their emergency case back- 
log. It is clear that Judge Lazzara will be a welcome addition to 
the Federal bench there. 

I have heard from many people in the Florida legal community 
about Judge Lazzara's fitness for the Federal bench. He is highly 
respected in the Tampa area, where he is currently on the State 
appellate bench. The Tampa Tribune had these positive comments 
on Judge Lazzara's nomination, and I quote, "The country doesn't 
need any more liberal judges who try to set social policy from the 
bench. But Lazzara, who is known for being apolitical, is not of the 
stripe. His approach to the law is conservative." He is also viewed 
by those who know him as a warm and decent man. 



8 

I, too, believe that he has shown himself to be a conservative ju- 
rist, interpreting statutes and precedents in a strict fashion even 
in situations where the outcome is not to his liking or the public's 
liking. With the current and appropriate emphasis we are placing 
on opposing judicial activism, Judge Lazzara appears to be the 
kind of jurist we should enthusiastically confirm. I would also like 
to note that back in 1992, my own judicial advisory commission 
recommended Judge Lazzara for nomination to the Federal bench. 

I want to thank the committee for providing me with the oppor- 
tunity to introduce Judge Lazzara. I know that Senator Graham 
and I both appreciate the timely consideration which has been 
given to other Florida judicial nominees in this Congress, and ask 
that in light of the compelling demands upon the Middle District 
of Florida, Judge Lazzara be confirmed swiftly by the committee 
and the full Senate. 

I thank you, Mr. Chairman. 

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

[The prepared statement of Senator Mack follows:] 

Prepared Statement of Senator Connie Mack 

Mr. Chairman, I am delighted to be here today to recommend Judge Richard 
Lazzara for confirmation to the position of United States District Judge for the Mid- 
dle District of Florida. This appointment comes at a critical time for this district. 

The Middle District of Florida is a unique one with compelling demands. It 
stretches from Jacksonville to Ft. Myers and contains 7.8 million people — more than 
half of the state's population. These dynamics and the rate of growth in the state 
have contributed to a situation of crisis proportions for this district. The Middle Dis- 
trict currently has the nation's eighth heaviest caseload, and Chief U.S. District 
Judge Elizabeth Kovachevich has told me on numerous occasions that the current 
backlog is growing at an alarming proportion. It is a problem Senator Graham and 
I are committed to addressing. 

In the meantime, the Middle District is doing what it can to alleviate the situa- 
tion. The District recently announced an intention to hold an unprecedented acceler- 
ated civil trial calendar in June, July and August of 1998 in which judges from the 
Jacksonville and Orlando divisions will join the U.S. District judges in Tampa to 
assist the Tampa/Ft. Myers division with their emergency case backlog. It is clear 
that Judge Lazzara will be a welcome addition to the federal bench there. 

I have heard from many people in the Florida legal community about Judge 
Lazzara's fitness for the federal bench. He is highly respected in the Tampa area 
where he is currently on the state appellate bench. The Tampa Tribune had these 
positive comments on Judge Lazzara's nomination: "The country doesn't need any 
more liberal judges who try to set social policy from the bench. But Lazzara, who 
is known for being apolitical, is not of that stripe. His approach to the law is con- 
servative." He is also viewed by those who know him as a warm and decent man. 

I, too, believe that he has shown himself to be a conservative jurist — interpreting 
statutes and precedents in a strict fashion even in situations where the outcome is 
not to his liking or the public's liking. With the current, and appropriate, emphasis 
we are placing upon opposing judicial activism. Judge Lazzara appears to be the 
kind of jurist we should enthusiastically confirm. 

I would also like to note that back in 1992 my own Judicial Advisory Commission 
recommended Judge Lazzara for nomination to the federal bench. I want to thank 
the Committee for providing me the opportunity to introduce Judge Lazzara. I know 
that Senator Graham and I both appreciate the timely consideration which has been 
given to other Florida judicial nominees by this Congress, and ask that, in light of 
the compelling demands upon the Middle District of Florida, Judge Lazzara be con- 
firmed swiftly by this Committee and the full Senate. Thank you. 

Senator Specter. We will move as expeditiously as possible. I 
have a very high regard for the work of the Federal judiciary. I 
have been a practicing lawyer all my life; I consider that up to the 
moment. I know how important that processing is and we will work 
to accomplish that. 



I want to note the presence of Staff Director Manus Cooney today 
and I want to thank him personally for expediting the process. 
When the nominations came in as to the — thank you very much, 
Senator Mack and Senator Graham. I know Senator Mack is 
straining at the starting point for the next race and I know how 
busy you are, so we appreciate your being here. 

Senator Mack. Thank you. 

Senator Specter. I was saying I want to thank Mr. Cooney espe- 
cially. After the nominations were submitted, he and I talked on 
a number of occasions in the month of August and it has not been 
easy to have these set up during the first week back from recess. 
So we thank you, Mr. Cooney. 

Senator Santorum had wanted to be here, but is in Pittsburgh 
today on family business and he sends his regrets. I know that he 
is very supportive of the Pennsylvania nominees who are here. 

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

While you are standing, judge, will you raise your right hand? Do 
you solemnly swear that the testimony you are about to give in this 
proceeding will be the truth, the whole truth and nothing but the 
truth, so help you God? 

Judge Rendell. I do. 

Senator Specter. It is a pleasure to welcome you here. Judge 
Rendell. You have an outstanding record as a district court judge, 
in the practice of law, and an outstanding academic record, grad- 
uating from the Villanova Law School in 1973 and Phi Beta Kappa 
from the University of Pennsylvania in 1969. 

On a personal note, so that my own bias will be known, I have 
known Judge Rendell since she was a college student and she 
dated Ed Rendell, who then had the lofty position of assistant dis- 
trict attorney in Philadelphia and now is the mayor of Philadel- 
phia, America's mayor as well. 

Judge Rendell, we welcome you here. 

TESTIMONY OF MARJORIE O. RENDELL, OF FENNSYLVANLV, 
TO BE U.S. CIRCUIT JUDGE FOR THE THIRD CIRCUIT 

Judge Rendell. Thank you, Senator. 

Senator Specter. Would you care to make any opening state- 
ment? 

Judge Rendell. I would like to have the record reflect those 
members of my family who are present with me. 

Senator Specter. If you would introduce them, we would appre- 
ciate it. 

Judge Rendell. Yes. My immediate family — my husband, Ed 
Rendell, is on his way. The vagaries of the Metroliner probably 
have affected his being here, but I know he was on the 7 a.m. or 
whatever. 

From my immediate family, our son Jesse, who was here the last 
time I had a hearing, is in his second day of his senior year in high 
school, so he is tending to his educational duties. 

I am pleased to have my chambers family here; my secretary, 
Beth Cummings, who has been with me for 15 years; my past, 
former law clerk, Cheryl Solomon, who is now with a law firm here 
in Washington; and my current law clerks, Adam Levin, who grad- 



10 

uated from NYU Law School, as well as Alison Conn, a graduate 
of Yale Law School. They have just started their tenure with me, 
so I am very pleased to have them. 

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

[The persons stood.] 

Senator Specter. Thank you all very much. 

Judge Rendell. Thank you. Senator, and in addition to that, I 
would just like to say I am extremely pleased and honored to be 
here and am thankful to the committee for having this hearing. 

Senator Specter. I should say. Judge Rendell, that your nomina- 
tion has been pending for some time, unlike the district court nomi- 
nees, and we will not burden the record with the reasons why. We 
are just glad to have you here today and move the process. 

Judge Rendell. Thank you. 

QUESTIONING BY SENATOR SPECTER 

Senator Specter. We are on a tight time schedule, which is cus- 
tomary around here. We have a vote scheduled at 9:50 this morn- 
ing, and the Governmental Affairs Committee is going to start 
hearings at 10 and I am on that committee and early up on a 
round of questioning. But I know we have sufficient time to com- 
plete our work, but we will move expeditiously. 

Judge Rendell, are you committed to faithfully following the Su- 
preme Court precedent and the rulings of other superior courts in 
your legal decisions? 

Judge Rendell. Yes, I am, Senator. 

Senator Specter. If you are presented with a case of first im- 
pression, what principles will guide you or what methods will you 
employ in deciding that case? 

Judge Rendell. If the case involves an issue of statutory inter- 
pretation, I would look first to the statute and to its plain meaning. 
Obviously, statutes are presumed to be constitutional in the first 
instance. And if the meaning were not plain, if there were ambigu- 
ity, I would look then to the legislative history to try to divine the 
legislative intent, knowing full well, however, that sometimes that 
can be misleading. So, that would involve some careful scrutiny. 

If the matter were a matter of interpreting the Constitution, I 
would look again to the text of the Constitution and to the histori- 
cal perspective and background of it. And in all instances, I would 
look at other precedent, or if not precedent, other cases, analogous 
cases decided by the Supreme Court or fellow circuit courts for 
guidance in how to make the determination. 

Senator Specter. Could you cite any Supreme Court opinion 
which you think is particularly well reasoned? 

Judge Rendell. I think the Dalbert case that has to do with ex- 
pert evidence is very well reasoned and has been of great help to 
the trial courts in helping us determine the reliability of expert 
opinion which I think is becoming increasingly important. And 
Dalbert is well reasoned in that it lays out tests clearly for us to 
follow, so I would cite that case. 

Senator Specter. Can you point to any case or specific areas of 
constitutional law where you think the Supreme Court improperly 
departed from the principles of the Constitution? 



11 

Judge Rendell. Well, I guess I would make the judgment of that 
kind of case where the Supreme Court itself has made a judgment 
that it has erred rather than myself presuming to say they were 
wrong and, for instance, Plessy v. Ferguson would be a case that 
I would say fits that description. 

Senator SPECTER. Judge Rendell, if you believed the Supreme 
Court had seriously erred in rendering a decision, how would you 
handle that in applying that law to a case pending before you? 

Judge Rendell. I would apply the Supreme Court precedent. 
That is the law of the land. 

Senator Specter. What is your judgment on the constitutionality 
of the death penalty? 

Judge Rendell. The Supreme Court has held it constitutional 
and I will follow that in my decisionmaking. 

Senator Specter. Have you had any death penalty cases come 
before you as a district court judge? 

Judge Rendell. I have had the trial of a case that was being 
prosecuted as a death penalty case under the crime bill, and I con- 
vened a jury and we were in the midst of a trial when the matter 
was pled, a guilty plea. So I was embarking upon, in fact, the first 
death penalty case in our district. That was last fall. 

Senator Specter. Do you have any conscientious scruples which 
would inhibit or prevent you from imposing or upholding the death 
penalty? 

Judge Rendell. No, I do not. Senator. 

Senator Specter. Do you believe it is appropriate for the Amer- 
ican Bar Association to take stands on political issues such as abor- 
tion, affirmative action, gun control? 

Judge Rendell. I guess the appropriateness of the activities of 
any group would depend upon its mission. I am not personally fa- 
miliar with the mission of the ABA. 

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

Judge Rendell. I have in the past. I am not currently. When I 
was in practice, in commercial practice, I found it helpful to receive 
their publications, but I have never been active. I think it is dif- 
ficult, if they are purporting to speak on behalf of all of the bar, 
for them to be taking positions on one side or the other of an issue. 

Senator Specter. I am not sure about the appropriateness of 
that question, but it is part of the boilerplate. 

Judge Rendell. Yes. 

Senator Specter. Since you are a friend and since I am presid- 
ing, I am going to ask you all the boilerplate questions. 

Judge Rendell. I didn't address it from the standpoint of ethics 
and obviously these are — I don't have any such cases before me. 
This hasn't come before me. 

Senator SPECTER. I have a lot of views on the ABA, but I don't 
know that they would qualify or disqualify me for anything. 

On the subject of judicial activism, we always take up this ques- 
tion, and with all the preparation, I don't know that it is possible 
for a nominee to give an inappropriate answer. Would you care to 
comment about the doctrine of judicial activism? 

Judge Rendell. I believe that a judge should decide the case be- 
fore him or her, the issues before him or her, and not stray from 
that. And I think my record on the district court shows that that 



12 

is what I do do. I believe it is inappropriate for a judge to go be- 
yond that, in Hght of the separation of powers. Our duty is to en- 
force and interpret the law and not to legislate. I happen to believe 
that and try to act accordingly. 

Senator Specter. In one of my early sessions on the Judiciary 
Committee, Senator Thurmond, then chairman, asked a nominee a 
question: if you are confirmed, do you promise to be courteous? And 
I was amazed at the question because what was a nominee to say 
except yes. There were two nominees from Pennsylvania, Judge 
Mansman, who is now on the circuit court, and Judge Caldwell, 
and they both said yes. 

Senator Thurmond said, the more power a person has, the more 
courteous the person should be. And as I reflected on that, that is 
as wise a comment as I have heard in this room. The competition 
hasn't been too heavy for wise comments in this room. But that is 
really important, and I say it only once to the nominees who are 
here on the importance of courtesy. 

I have seen in my experience in the courtroom, and I have had 
a fair amount of it, a tremendous amount of conduct which is ex- 
cessive by judges once they put on the robes — just really, really ex- 
cessive. Once you are a judge, you are there. Some of us think a 
constitutional amendment might be in order to have Federal judges 
run every 6 years and, of course, to have Senators serve for life. 
[Laughter.! 

But I say with great seriousness the import of Senator Thur- 
mond's admonition that you really ought to keep in mind when liti- 
gants and parties are before you that you ought to consider your- 
self as if they are really before the public and almost up for elec- 
tion, to have your comments judged and your demeanor regarded 
as if that were on the line. 

Senator Kohl. 

Senator Kohl. Thank you, Mr. Chairman. 

Senator SPECTER. We have been joined, obviously, here by our 
very distinguished colleague, former chairman of this committee, 
former ranking member of this committee. 

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

Senator Specter. And current guru of this committee. 

Senator Kohl. 

QUESTIONING BY SENATOR KOHL 

Senator Kohl. I will be brief. Judge Rendell. In your opinion, 
what are the most important decisions of the Supreme Court in the 
20th century — the most important three decisions, and why? 

Judge Rendell. I believe that in terms of changing the law and 
setting precedent that will guide us — in the criminal area, I would 
have to say Miranda is one which is important in terms of chang- 
ing the thinking or the balance, if you will, in criminal law in a 
way unlike it was the first half of this century. 

Brown v. Board of Education obviously made a radical change in 
our thinking at a time when the Supreme Court felt it was called 
for. And the third area — I am trying to think of different areas of 
the law — again, I get back to Dalbert and the way we conduct our 
civil cases. So often, civil cases come before us with experts or pre- 
sumed experts, and I think Dalbert will make a big change in the 



13 

law in terms of cases that do and do not proceed to trial based 
upon the reliability of experts. 

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

Senator Specter. Thank you very much, Senator Kohl. 

Senator Sessions. 

QUESTIONING BY SENATOR SESSIONS 

Senator SESSIONS. Mr. Chairman, I think Pennsylvania and the 
three nominees that we are seeing here from the State appear to 
have exceptional qualifications and appear to be the kind of nomi- 
nees that will do an outstanding job as Federal judges. 

I congratulate you and Senator Santorum and the President for 
nominees that appear to be skilled and capable with good experi- 
ence. You are to be congratulated. I knov/ you have worked hard 
in trying to have the kind of judges that we need in America. 

Good-quality judging is important. I take it very seriously. My 
staff and I look at nominees and give it some thought. It is a life- 
time appointment. Courtesy, fidelity to the law, hard work, and 
case management are the cornerstones of a good Federal judge. I 
have practiced full time before Federal judges for 15 years, and a 
good judge makes it a pleasure to be in court and a bad judge can 
make it a nightmare, or give you nightmares worrying about what 
is going to happen the next day. 

I think these nominees appear to be the kind of nominees that 
will serve the Nation well. I do have another committee hearing to 
attend. I also think the nominee from Florida, Mr. Lazzara — both 
Senator Graham and Connie Mack are confident in his abilities, 
and his background appears to be excellent, too. 

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

Senator Specter. Thank you very much. Senator Sessions. 

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

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

Senator Specter. Do you think the cross might be a little more 
extensive? 

I am pleased to call on now our distinguished colleague. Senator 
Biden. 

QUESTIONING BY SENATOR BIDEN 

Senator Biden. Mr. Chairman, I am completely objective in this 
nomination. The fact that the judge is bright, well educated, hon- 
est, balanced, and conscientious, has nothing to do with the fact 
that I have known her since I have been in high school. She is ex- 
tremely qualified for this job. She will be a great addition to the 
third circuit, which has one of the most distinguished reputations 
of all the circuits in the history of the United States of America. 
Some truly great jurists have served on that court. 

Midge, as a judge, you will be taking a place where others have 
sat who have literally changed the face of America for the better, 
and I think you deserve to be there. I should ask you questions and 
pretend I am interested in your answers. I know you too well. I 
have too much respect for you, and I am completely confident in 



14 

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

My one regret and I am sure it is yours, too, is that your dad 
is not here. He would be, and is, extremely, extremely proud of you. 

Judge Rendell. Thank you. 

Senator BiDEN. I still can't figure out why you married a guy 
fi-om New York, but I guess in time we will work that one out. I 
welcome the mayor as well. I think, quite frankly, judge, you have 
the better job. Clearly, the job security is better, and I think the 
decisions, although difficult, may be even easier to make. 

I am excited about your nomination. 

Judge Rendell. Thank you. Senator. 

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

I must say, Mr. Chairman, you have also recommended to the 
President three other nominees. I am very regretful that one is not 
here today for the western district. I hope it is not petulance that 
is keeping that from occurring because he is as qualified as the oth- 
ers that are here today. 

With the exception of the circuit judge, I must tell you, Mr. 
Chairman, and tell the other judges, including Mr. Kauffman, 
whom I know and think is a great appointment as well, that a lot 
is going to depend, from this Senator's standpoint, on what hap- 
pens to the judge from the Western District as to how — at any rate, 
that is for another time and another fight and it is unrelated to you 
directly and unrelated to Judge Rendell. 

I am excited about it. Midge, and I tell you I think it is wonder- 
ful. Congratulations. I look forward to watching from afar your con- 
tinued distinguished career. 

Judge Rendell. Thank you, Senator. I am honored and humbled 
by your remarks. Thank you. 

Senator Specter. Thank you very much. Senator Biden. I had 
commented about Mr. Bingler earlier, John Bingler, and had said 
that he had been nominated and hoped that we would have him 
before this committee soon and that that was in process. I did not 
give any further explanation, but 

Senator BiDEN. By the way, I want to make it clear for the 
record that ever3^hing in my experience, knowing you for a couple 
of decades now — everything you have ever said, you have done, and 
I have absolute, complete confidence that you are trying your best 
to make sure Mr. Bingler gets before this committee. I appreciate 
that very much and I will pursue that with you. 

Senator Specter. Thank you very much, and the reason that 
Judge Rendell married a New Yorker was because he had a very 
important position. He was assistant district attorney in Philadel- 
phia. 

Judge Rendell. For one Arlen Specter, who was then the district 
attorney, I might add. 

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

Thank you very much, Judge Rendell. I think that your con- 
firmation is as close to being assured as anything can be. Thank 
you for coming. 



15 

Judge Rendell. Thank you, Senator, and thank you again for 
convening this hearing. 

Senator Specter. Thank you. 

We will now call the district court nominees together to speed 
the process just a little. If you would all step forward, Justice 
Kauffman, Judge Lazzara, and Mr. Caputo, and raise your right 
hands, do you solemnly swear that the testimony you will give in 
this proceeding will be the truth, the whole truth and nothing but 
the truth, so help you God? 

Mr. Kauffman. I do. 

Judge Lazzara. I do. 

Mr. Caputo. I do. 

Senator BiDEN. Mr. Chairman, before you begin, may I clarify 
the record? I referred to a circuit court nominee. I want the record 
to show that I have known her since high school. We go back all 
the way to high school; we have been friends for years. Thank you 
very much, Mr. Chairman. 

QUESTIONING BY SENATOR SPECTER 

Senator Specter. Thank you very much, Senator Biden. 

Let us begin with former justice Kauffman, who brings to this 
position an outstanding record, having served on the Supreme 
Court of Pennsylvania; an outstanding record as a litigator; an out- 
standing academic record from the University of Pennsylvania and 
Yale Law School. He couldn't have made two better selections be- 
cause they are the same as mine. 

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

TESTIMONY OF BRUCE W. KAUFFMAN, OF PENNSYLVANIA, TO 
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
PENNSYLVANIA 

Mr. Kauffman. Yes, Senator, I am. 

Senator Specter. If you are presented with a case of first im- 
pression, what principles will guide you in deciding the case? 

Mr. Kauffman. The principles of recognizing that a statute is 
presumed to be constitutional; that it is the role of the courts not 
to legislate, but to enforce the law, and therefore we search for 
precedents that will help us interpret an ambiguous, if a statute 
were to be ambiguous. And, finally, we look at legislative history, 
if need be, but I repeat what was said earlier today that legislative 
history sometimes can be very dangerous because it may be only 
the opinion of one Member of the Congress, and therefore you have 
to carefully scrutinize legislative history. Hopefully, the presum^p- 
tion of constitutionality of the statute will 

Senator Specter. Can you cite any specific Supreme Court opin- 
ion which you think is particularly well reasoned? 

Mr. Kauffman. Yes; I think that the Adarand decision is a very 
well reasoned decision. 

Senator Specter. Can you cite any situation or case where you 
think the Supreme Court has improperly departed from the prin- 
ciples of the Constitution? 

Mr. Kauffman. Yes; I think I agree with what Judge Rendell 
said that you look at cases that the Supreme Court decided that 



16 

were improperly decided, such as Dred Scott and Plessy v. Fer- 
guson. 

Senator Specter. What would you do if you believed the Su- 
preme Court or the court of appeals had seriously erred in render- 
ing a decision? What would you do with respect to applying it to 
the case before you? 

Mr. Kauffman. As a Federal district judge, a trial judge, I would 
be bound by the precedent of the higher courts. 

Senator Specter. As to the death penalty, had you sat on death 
penalty cases when you were on the Supreme Court of Pennsyl- 
vania? 

Mr. Kauffman. Yes; I did. Senator. 

Senator Specter. Do you have any moral compunction against 
the imposition of the death penalty? 

Mr. Kauffman. I have no moral compunction that would prevent 
me from enforcing the law. 

Senator Specter. Had you been a part of the majority of the 
court upholding the death penalty in cases where you sat on the 
Supreme Court of Pennsylvania? 

Mr. Kauffman. I don't think that the opportunity came while I 
was there to actually enforce a death penalty, but there were cases 
where the principle came up and I had no moral compunction 
against voting to enforce the law. 

Senator Specter. Well, as you say that, I reflect we didn't have 
the death penalty in Pennsylvania from 1972 for a long time, but 
we had had a lot of cases come up where it was imposed but wasn't 
carried out. 

Mr. Kauffman. Correct. 

Senator Specter. We are going to skip the American Bar Asso- 
ciation question in this round. 

What is your view on judicial activism? 

Mr. Kauffman. Senator, I believe that the tripartite system of 
government that we have is excellent. It has worked. Checks and 
balances are important. The job of a Federal court is not to make 
the law, but to interpret the law. The job of the legislature, the 
Congress, is to make the law, and I think it is very important that 
Federal judges understand that and conduct themselves accord- 
ingly. 

Senator Specter. Justice Kauffman, you have had a very distin- 
guished career and done a lot of hard work. You have had a lot of 
lofty positions educationally, professionally, supreme court. You are 
a big wheel. Can you make a commitment now to all those lawyers 
and all those litigants come before you that you are going to keep 
your temper all the time and you are going to be courteous to them 
all the time? 

Mr. Kauffman. Senator, yes, indeed. This is something I have 
wanted to 

Senator Specter. OK, because I know you pretty well and it is 
not an easy commitment to keep, and I am going to ask you to 
think about this when they are before you and some lawyer is ram- 
bling, some litigant is not too directed, and all the temptation is 
there and you have had a bad morning. Think about Senator Thur- 
mond. 



17 

I had commented, Senator Biden, earlier about Senator Thur- 
mond's comment to always be courteous. 

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

Senator BiBEN. He is a man who has never lost his temper, I can 
assure you. [Laughter.] 

Senator Specter. Senator Kohl. 

QUESTIONING BY SENATOR KOHL 

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

Since their inception, the Federal sentencing guidelines have 
been the subject of debate. In fact, at least one district court judge 
resigned because, according to press accounts, he felt that the man- 
datory guidelines were too harsh and too rigid. Some appellate 
judges, like Judge Easterbrook of the seventh circuit, have been 
criticized for their unwillingness to allow district court judges to 
depart from the sentencing guidelines, even for upward departures. 

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

Mr. Kauffman. Senator Kohl, I believe that a Federal district 
judge, no matter what his personal opinion may be of sentencing 
guidelines, has no choice but to follow what the law is. The Con- 
gress decides that issue, and I promise you that I will very vigor- 
ously enforce the laws as passed by Congress and I will not let my 
personal opinion of whether sentencing guidelines are good or bad 
interfere with my administration of them. 

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

Senator Specter. Senator Biden. 

questioning by senator biden 

Senator BiDEN. I have one question that is going to sound like 
I am not being serious at first blush. Justice Kauffman, but I am 
very serious. Considering your stature and success in the law in 
one of the Nation's largest cities, in a town renowned for very high- 
powered lawyers, why do you want to be a district court judge? 

Mr. Kauffman. Senator, this is something that I have wanted to 
do all of my life. I grew up in a family where my dad was a lawyer 
and a judge. Our family has always been devoted to public service. 
I view this as the pinnacle of the profession and an unusual oppor- 
tunity to serve the public for the rest of my life. It is something 
that I want to do very much, and I have had to answer the same 
question to my wife and some others, too, and believe me. Senator, 
I have thought about that. 

But I feel that I have been very lucky in life and that every law- 
yer, and me in particular, has the obligation to give back to this 
country that has been so good to all of us. And I know this sounds 
like platitudes, but I sincerely mean that I feel an obligation to de- 
vote the rest of my life to public service and that is what I hope, 
if confirmed, I will be permitted to do. 

Senator BiDEN. Well, I believe you do. I can't think of a better 
reason why one should want to be a Federal judge. Thank you. 

Mr. Kauffman. Thank you, Senator. 

Senator Specter. Thank you, Senator Biden. 



18 

Justice Kauffman, would you introduce your family and friends? 
I did not have a chance earlier to greet all of your friends — I didn't 
see him there — but I will later. 

Mr. Kauffman. Thank you, Senator. I first want to say I am 
very honored, sincerely honored and grateful to be here this morn- 
ing, and I do have my family and friends, both in person and by 
representation. 

My 89-year-old father who is in Florida is here in spirit and will 
be watching this on CNN. This is something very important to him 
in his life, too, and I am so happy that he is alive to see this. 

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

Senator Specter. Would you stand, Carol, please? 

[Mrs. Kauffman stood.] 

Senator Specter. Thank you. 

Mr. Kauffman. My son, one of my sons, Robert Andrew 
Kauffman, who is a former assistant U.S. attorney in Philadelphia, 
and now a lawyer, a trial lawyer, in the distinguished firm of 
Reese, Smith, Shaw, McLean in Pennsylvania — he is here rep- 
resenting himself, of course, but also his brother. Brad, his sister, 
Margie, and his sister, Laurie, and his sister, Christine, and my 
brother, Alan, who practices law in Florida, and my grandchildren, 
Stephanie and Sara. So I am very happy that Robert could be here 
today, for a variety of reasons. My other children and brother and 
grandchildren are not here. 

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

Mr. R. Kauffman. No, Senator. 

Mr. Kauffman. I have some very — I am a lucky man. I have 
some very dear friends. 

Senator Specter. Justice Kauffman, may I ask you to expedite 
this because we are going to have to conclude this hearing? 

Mr. Kauffman. Yes; here today are some wonderful friends of 
mine — Leonard Sylk, of Philadelphia; Jerome Richter, Esq., of 
Philadelphia; Ken Tepper, Esq., of Philadelphia; and my partner 
representing not only himself, but the firm of Dilworth, Paxson, 
Kalish & Kauffman, Thomas Groshens. 

I also have — and I saved him for last; he should have been first — 
a marvelous friend of mine here. Congressman Robert Andrews, of 
New Jersey. Well, he was here just a few moments ago. 

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

Senator Specter. Thank you very much. Justice Kauffman. 

One final note about Justice Kauffman's extraordinary service 
with his law firm, the Dilworth firm, in representing many of us 
in the navy yard litigation on base closures; I think a really re- 
markable contribution. 

questioning by senator specter 

Senator Specter. Judge Lazzara, welcome. You bring to this 
hearing a very outstanding record academically, professionally, and 
as a Florida State judge. Let me begin with a central question 
which has been inquired into by the committee, and that is with 
respect to a murder case which you presided over where you did 
not impose the death penalty after that was recommended by the 
jury. That has been inquired into in detail by staff, which has 



19 

found your explanation satisfactory, but I think it is important for 
our record here that you state your reasons for departing from the 
jury's recommendation in that case. 

TESTIMONY OF RICHARD A. LAZZARA, OF FLORIDA, TO BE U.S. 
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA 

Judge Lazzara. Well, as you know, Senator, in connection with 
those inquiries I have furnished a complete copy of the sentencing 
transcript which reflects in detail my legal reasons for not doing so. 

In Florida, the jury's recommendation as to whether to impose or 
not to impose a death penalty is not binding on the trial judge. 
That awesome responsibility falls on the trial judge. After review- 
ing exhaustively the law of the State of Florida relating to whether 
the death penalty should or should not be imposed, and after strict- 
ly applying that law as it should be applied to the objective facts 
that I found in the record, it was my determination that the death 
penalty was not an appropriate sanction in that case. And therefore 
I exercised what I believed to be and what I still believe to be good 
judgment in sentencing Mr. Bailey to life imprisonment. 

That was not the only case that I have had the occasion to con- 
sider whether the death penalty should be imposed. There were 
two others which I have noted, I believe, in my response. In those 
cases, I followed the exact same approach that I followed in Mr. 
Bailey's case. I strictly applied the death penalty law, as I under- 
stood it, to the objective facts appearing in the record. Using that 
same process in those other two cases, it was my determination 
that the death penalty was the appropriate sanction. 

Senator Specter. And you imposed that sentence? 

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

Senator Specter. Do you have any conscientious scruple against 
imposition of the death penalty? 

Judge Lazzara. No, sir. 

Senator Specter. Judge Lazzara, give us your views on judicial 
activism. What is the appropriate role of a judge in that respect? 

Judge Lazzara. As I understand it, a judicial activist is one who, 
for their own personal reasons, consciously ignores the law and the 
facts in resolving a dispute. I have never been that type of judge, 
I think, as my record reflects. I don't intend to be that type of judge 
as a U.S. district court judge, if I am fortunate enough to be con- 
firmed. And in my view, any judge who takes that approach should 
hang up the robe. If they want to legislate, they should run for the 
legislature and should not be in the judicial branch of government. 

Senator Specter. What would you do if you found a case from 
the Supreme Court or court of appeals particularly disturbing and 
sharply disagreed with it? How would you handle that in your 
court? 

Judge Lazzara. If it was the law of the land, binding precedent 
under the basic principles of stare decisis which brings continuity 
and finality to our judicial system, I must follow them. I would dis- 
agree if I felt appropriate, but I would have to follow them. 

Senator Specter. Can you point to any case where you think the 
Supreme Court made an erroneous decision? 



20 

Judge Lazzara. I think Judge Rendell and former Justice 
Kauffman have pretty well covered the ballpark in that area. 
Plessy V. Ferguson 

Senator Specter. They left out a few cases. 

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

Senator Specter. Do you have members of your family here, 
Judge Lazzara? If so, we would be pleased to have you introduce 
them. 

Judge Lazzara. Yes. I am pleased to have here my son, Damon 
Lazzara, and his good friend and my second son, really, Mr. Daniel 
Simitovich. And my wife sends her regrets for not being able to be 
here. 

Senator Specter. We have been joined now by Representative 
Andrews. Would you stand? 

[Mr. Andrews stood.] 

Senator Specter. Congressman Andrews met his wife in the 
course of the navy yard litigation and was a party to that, a very 
distinguished legislator and public servant. 

Senator Kohl. 

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

Senator SPECTER. Senator Biden. 

Senator BiDEN. I have no questions. 

Senator Specter. Thank you. 

Anything further you would care to say? 

Judge Lazzara. I just wanted to express my appreciation to Sen- 
ator Graham and Senator Mack for taking time from their busy 
schedules to be here and to present me to the committee, and I ap- 
preciate the committee having me here, sir. 

Senator Specter. Thank you very much, judge. 

We now turn to A. Richard Caputo, who also brings a very distin- 
guished record to this hearing, a graduate of Brown University and 
the University of Pennsylvania Law School, 1963; a JAG officer in 
the Air Force; extensive public service, community activities. 

Judge Caputo, welcome. Is there any opening statement you 
would care to make? 

TESTIMONY OF A. RICHARD CAPUTO, OF PENNSYLVANIA, TO 
BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 
PENNSYLVANIA 

Mr. Caputo. No, sir. I would like to introduce members of my 
family. 

Senator SPECTER. Please do that, yes. 

Mr. Caputo. My wife, Rosemary. 

Senator Specter. Would you stand, Mrs. Caputo? 

[Mrs. Caputo stood.] 

Mr. Caputo. My daughter, Lisa, and my son, Richard. And my 
daughter, Christina, lives in Florida and was unable to make it, 
and, of course, her husband, Jerry, and my son Richard's wife, Lau- 
rie, and my grandson, Richard III. 

Senator SPECTER. Thank you very much. It is a very beautiful 
family which you have, so that I can put that on the record to be 
along with Senator Biden. [Laughter.] 



21 

QUESTIONING BY SENATOR SPECTER 

Senator SPECTER. Mr. Caputo, I am presuming twice now, but I 
don't think it is an unreasonable presumption. Are you committed 
to faithfully following Supreme Court precedents and the rulings of 
the third circuit? 

Mr. Caputo. Yes; I am, Senator. 

Senator Specter. What are your views on judicial activism? 

Mr. Caputo. Well, my views on judicial activism are that judges 
are appointed to interpret the law, to decide controversies and 
cases, and resolve grievances, not make policy and legislate. I also 
would note that Federal courts are courts of limited jurisdiction 
and Federal judges certainly should be mindful of that particular 
facet of their function. 

Senator Specter. If you had a case where you thought — well, 
what Supreme Court decision would you point to, if any, that you 
thought was improperly decided? 

Mr. Caputo. Well, I know everyone has so far mentioned Plessy 
and Dred Scott. I suppose I could add the Lochner v. New York case 
involving 

Senator Specter. What were the facts in that case. Justice 
Kauffman? 

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

Senator Specter. The facts in Lochner? 

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

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

Senator BiDEN. You are not required to answer the question. 

Senator Specter. I just wanted to know if you were listening. Mr. 
Caputo was starting to answer it for you. 

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

Mr. Caputo. No, sir, I do not. 

Senator Specter. What kind of cases have you handled generally 
in the practice of law? 

Mr. Caputo. I have handled most — all kinds of cases. My prac- 
tice has been fairly general. 

Senator Specter. Have you had some criminal cases? 

Mr. Caputo. I have, not many. 

Senator Specter. Ever represented a defendant in a capital 
case? 

Mr. Caputo. No, I have not. 

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

Mr. Caputo. I think in many respects, as Judge Kauffman said, 
it is something I have wanted to do all my life. I feel like I have 
trained for it my entire career, and I think I have reached the point 
of experience and temperament that qualifies me at this point in 
my life to do it. I think it is one of the highest callings we can have 
in our profession, and I feel as though I am ready and I would like 
to do some public service at this point in my life. 

I enjoy a reputation for competence and integrity. I am willing 
to work hard and I am a good listener, and I think that is what 
a judge has to do, listen and decide, and I am prepared to do that. 



22 

Senator Specter. You heard my question to Justice Kauffman, 
and you also, Judge Lazzara, about being courteous at all times. 
Are you ready to make that commitment to this committee? 

Mr. Caputo. Absolutely, I am, sir. 

Senator Specter. Senator Kohl. 

QUESTIONING BY SENATOR KOHL 

Senator KOHL. Just one question. I noticed that no one this 
morning mentioned among the most important Supreme Court de- 
cisions Roe V. Wade. Do you have a comment on that? 

Mr. Caputo. I really can't comment on that in any way except 
that it is the law and, if called upon, I would follow it. 

Senator KOHL. Thank you. 

Senator Specter. Senator Biden. 

Senator Biden. I want a commitment, judge, that you will be 
particularly mindful of litigants from Scranton, PA. That is my 
hometown. Scranton doesn't get paid attention to enough. I just 
want you to know that. 

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

Senator Biden. All right, good. Just so long as they are treated 
fairly, I have no question. 

I suspect the reason why none of you mentioned Roe, although 
all of you probably in your hearts know it is probably one of the 
most significant decisions, whether you agreed with it or not, is be- 
cause you have all been attuned to make sure not to mention Roe 
because you know that is a flash point, the one thing that will get 
everyone's interest. I kind of wish one of you had, but I think that 
is the reason. You have all had significant legal experience, and so 
I am sure your good judgment and wisdom prevailed upon you not 
to suggest Roe as one of the decisions. At any rate, a wise decision, 
I might add. 

I thank you very much, Mr. Chairman. 

Senator Specter. Thank you. Senator Biden. 

Thank you all. 

At this point we will place into the record a statement submitted 
by Senator Santorum. 

[The prepared statement of Senator Santorum follows:] 

Prepared Statement of Hon. Rick Santorum, a U.S. Senator From the State 

OF Pennsylvania 

Mr. Chairman, thank you for accepting this testimony in strong support of the 
nominations of Judge Marjorie Rendell, Justice Bruce Kauffman, and Mr. Richard 
Caputo, who are appearing before you today. 

I regret that I will be unable to appear before the Committee today. A family com- 
mitment in Pittsburgh will keep me in Pennsylvania throughout the day. Nonethe- 
less, I wish to provide for the record this statement as a means of expressing my 
support for these nominees. 

Judge Rendell has an impressive record of service on the bench of the U.S. Dis- 
trict Court for the Eastern District of Pennsylvania. Having had the opportunity to 
review many of her rulings, I am confident that the Third Circuit will benefit from 
her skills and experience. Further, her rulings reflect a well grounded, common 
sense understanding of the law and the adjudicatory role of judges. For instance, 
in United States v. Roberson, 1995 WL 314714 (E.D. Pa., May 17, 1995), Judge 
Rendell rightly held that evidence of drug dealing was admissible because the police 
had probable cause to stop the defendant after receiving a call regarding the defend- 
ant selling drugs. 

The Committee should also take note of Judge Rendell's active involvement in 
many charitable and nonprofit organizations throughout southeastern Pennsylvania. 



23 

Whether it is the University of Pennsylvania, the Visiting Nurse Association, or 
Philadelphia's Avenue of the Arts, her volunteer efforts have contributed to the 
quality of life in our Commonwealth for over twenty years. I believe this work re- 
flects her deep commitment to the people whom her decisions on the bench will af- 
fect. 

Justice Kauffman has practiced law in Philadelphia for over thirty-five years. He 
has provided the committee with extensive information on his rich and varied expe- 
riences before numerous courts in the Commonwealth of Pennsylvania. In reviewing 
his background, I noted his determination and effective representation of the City 
of Philadelphia and others in attempting to keep the Philadelphia Naval Shipyard 
open. Such pro bono work indicates Justice Kauffman's dedication to the law and 
interest in the well being of the people of southeastern Pennsylvania. 

As you know, Justice Kauffman has also served as a Justice on the Supreme 
Court of Pennsylvania. I have had the opportunity to review many of his rulings. 
His work clearly reflects a deep understanding of the many demands faced by one 
serving on a judicial bench. I am confident that the Committee will agree that the 
Eastern District of Pennsylvania will greatly benefit from Justice Kauffman's intel- 
lect, character, and experience. 

As with the other nominees, Mr. Richaird Caputo will bring a wealth of experience 
to the federal bench. For over thirty years, Mr. Caputo has practiced law in a wide 
range of fields, including Special Courts-martial in the Air Force, state and federal 
criminal trials, and extensive civil litigation. I believe the Committee should take 
special note of Mr. Caputo's contributions as a public servant. I include in this de- 
scription both his service in the United States Air Force and his work as a public 
defender for Luzerne County, Pennsylvania. His interest in returning to such serv- 
ice as a judge for the U.S. District Court for the Eastern District of Pennsylvania 
reflects his deep commitment to the people of our Commonwealth. 

Mr. Caputo's experiences have shaped a career uniquely suited for future work 
on the federal bench. For instance, in Commonwealth of PA v. Chas. S. Grucella, 
Criminal No. 1343 of 1967, (Luzerne County Court of Common Pleas), 58 Luz. L.Reg. 
137, 59 D&C 2d 610 (1967), Mr. Caputo argued that former Public Defenders who 
later worked for the District Attorney should be precluded from prosecuting defend- 
ants who were former clients. I believe this experience provided Mr. Caputo with 
a deep appreciation for prosecutorial powers, the balance of powers, the appearance 
of conflict of interest, and the public interest as a whole. Bringing this appreciation 
to the federal bench will enhance the already high reputation of the Middle District 
of Pennsylvania. 

Mr. Chairman, thank you again for accepting this statement. I look forward to 
aiding the Committee as it reviews these nominations, and I expect to ultimately 
see these nominations pass overwhelmingly before the full Senate. 

Senator Specter. These hearings are not as elongated as people 
might suppose. I know when nominees come, they are concerned, 
as is obvious. There has been a very thorough investigation. Sen- 
ator Santorum and I have a judicial nominating commission which 
has gone over the records in detail, and then there is an American 
Bar Association review and there is an FBI review. There has been 
a lot of examination. 

Unless it is a Supreme Court nomination or a contested nomina- 
tion for some reason, these hearings do not draw many of the Sen- 
ators. And we try not to have them pro forma, but you have al- 
ready submitted answers to many, many questions which have 
been reviewed in great detail. So it ought to be said briefly that 
there has been a very thorough examination of your records and 
qualifications. 

You undertake an enormously important job, and my view is that 
the third branch of Government — ^you are article III in the Con- 
stitution, but the Federal judiciary changed that in Marbury v. 
Madison and you are now No. 1. You are independent, you are in- 
defatigable, and you render decisions which have really been the 
pillar of America, in my opinion. 

We are constrained here and at the White House by many, many 
considerations. You take up these cases, and you take them up one 



24 

by one and give a kind of hearing and airing. The Federal judiciary 
is the cornerstone of our society, in my opinion. You have a very, 
very heavy responsibiUty, and be courteous. 

Thank you. That concludes our hearing. 

[Whereupon, at 9:57 a.m., the committee was adjourned.] 

[Submissions for the record follow:] 



25 
SUBMISSIONS FOR THE RECORD 



SENATE JUDICIARY COMMITTEE QUESTIONNAIRE 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name : (include any former names used) . 

Marjorie 0. Rendell (nee Marjorie May Osterlund) 

2. Address : List current place of residence and office 
address (es) . 



Chambers: United States District Court 
601 Market Street, Room 3114 
Philadelphia, PA 19106 

3 . Date and place of birth . 

December 20, 1947 
Wilmington, DE 

4. Marital Status (include maiden name of wife, or husband's 
name) . List spouse's occupation, employer's name and business 
address (es) . 

Spouse: Hon. Edward G. Rendell 

Mayor, City of Philadelphia 
215 City Hall 
Philadelphia, PA 19107 

5. Education : List each college and law school you have 
attended, including dates of attendance, degrees received, and 
dates degrees were granted. 

University of Pennsylvania (9/65 - 5/69) 
B.A., 1969 

Dean's List 

Graduated cum laude 

Georgetown University Law Center (9/70 - 5/71) 
1970-71 (transferred to Villanova upon marriage) 

Invited to join Law Journal and Criminal Law 
Review; declined due to transfer to Villanova 

Villanova School of Law (9/71 - 5/73) 
J.D., 1973 



26 



Employment Record : List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were 
connected as an officer, director, partner, proprietor, or 
employee since graduation from college. 

Employment 

1969-1970 University of Pennsylvania 
3451 Walnut Street 
Philadelphia, PA 19104 
Annual Giving - Development Department 
(Fundraising) 

1972-1994 Duane, Morris & Heckscher 

Summer 1972 - Summer clerk 
1972-1973 - Part-time 
1973-1981 - Full-time associate 
1981-1994 - Partner 

1994 -present United States District Court 
601 Market Street, Room 3114 
Philadelphia, PA 19106 



Other (Boards) 
1973-1978 



Philadelphia Bar Association 

Board of Directors, Young Lawyers 
Section 



Late 1970s- 
1994 



1978-1994 



University of Pennsylvania 
(various advisory boards) 

Visiting Nurse Association 
of Greater Philadelphia 
Visiting Nurse Society 



Late 1980s- 
1994 



1992-1994 



East Falls Advisory Board of 

Chestnut Hill National Bank 
Pennsylvania's Campaign for Choice 

Academy of Vocal Arts 

Market Street East Improvement Association 
Philadelphia Bar Foundation 
Philadelphia Friends of Outward Bound 



1992-Present Avenue of the Arts, Inc. (Vice-Chair) 



SomU Judidary 



27 



1995-Present University of Pennsylvania 
{Board of Trustees) 
University of Pennsylvania College of 
Arts and Sciences 
(Board of Overseers) 



♦NOTE: I resigned from most of the above boards upon assuming 
the bench. I presently serve only on the boards of 
trustees of Avenue of the Arts, Inc. and the University 
of Pennsylvania, and on the Board of Overseers of the 
College of Arts and Sciences. 

7. Military Service: Have you had any military service: If so, 
give particulars, including the dates, branch of service, rank 
or rate, serial number and type of discharge received. 

No military service. 

8. Honors and Awards: List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of interest to the Committee. 

Phi Beta Kappa 

Philadelphia College of Textile and Science 

Doctor of Laws - Honorary Degree awarded in May 1992 

Fellow, American College of Bankruptcy, 1996 

9. Bar Associations: List all bar associations, legal or 
judicial -related committees or conferences of which you are or 
have been a member and give the titles and dates of any 
offices which you have held in such groups. 

American Bar Association* 
Pennsylvania Bar Association* 
Philadelphia Bar Association* 

(Board of Directors, Young Lawyers Section, 1973-78) 
American Bankruptcy Institute* 

Eastern District of Pennsylvania Bankruptcy Conference* 
Philadelphia Bar Foundation (board member, 1992-94)* 
Alternative Dispute Resolution Committee 

of the Eastern District Bankruptcy Conference 

Mediation Division* 
The Historical Society of the United States District 

Court for the Eastern District of Pennsylvania 
Federal Judges Association 
American Judicature Society 
National Association of Women Judges 
American College of Bankruptcy 

* formerly 



ScnHte JudklHf7 - 3 - 



28 



10. other Memberships: List all organizations to which you belong 
that are active in lobbying before public bodies. Please list 
all other organizations to which you belong. 

Organizations active in lobbying: None. 

Other organizations: 

Board Memberships 

Avenue of the Arts, Inc. (Vice-Chair) 
University of ' Pennsylvania 

Board of Trustees 

Board of Overseers 

of College of Arts and Sciences 

Women's Associations 

International Women's Forum 
University of Pennsylvania 

Trustees' Council of Penn Women 

Other 

Vesper New Years Association - Vesper Club (eating club) ; 
copy of by-laws provided herewith. 

11. Court Admission : List all courts in which you have been 
admitted to practice with dates of admission and lapses if any 
such memberships lapsed. Please explain the reason for any 
lapse of membership. Give the same information for 
administrative bodies which require special admission to 
practice. 

Supreme Court of Pennsylvania (11/15/73) 
U.S. Court of Appeals for the Third Circuit (4/27/78) 
U.S. District Court for the Eastern District 
of Pennsylvania (3/18/75) 

12. Published Writings : List the titles, publishers, and dates of 
books, articles, reports, or other published material you have 
written or edited. Please supply one copy of all published 
material not readily available to the Committee. Also, please 
supply a copy of all speeches by you on issues involving 
constitutional law or legal policy. If there were press 
reports about the speech, and they are readily available to 
you, please supply them. 

Published Writings : 

Contributing author of seminar materials published in 
connection with above-mentioned annual seminar 
presentations; drafted sections on Secured Creditor 



29 



claims and Adequate Protection in all editions. The most 
recent editions are: 

Developments in Reorganization and Commercial 
Finance Law -- 1990 and 1991 (Ninth Annual Seminar) 
(305 pps.) 

Duane, Morris & Heckscher 
Reorganization and Finance Section 
Copyright 1991 Duane, Morris & Heckscher 

Developments in Bankruptcy Reorganization and 

Finance Law: 1989; A 1990 Annual (Eighth Annual 

Seminar) (249 pps.) 

Duane, Morris & Heckscher 

Copyright 1990 Aspen Publishers, Inc. 

Developments in Reorganization and Commercial 
Finance Law -- 1988 and 1989 (Seventh Annual 
Seminar) (181 pps.) 
Duane, Morris & Heckscher 
Reorganization and Finance Section 
Copyright 1989 Duane, Morris & Heckscher 

Speeches on issues involving constitutional law or legal 
policy 

11/29/95 - Villanova University School of Law 
Nineteenth Annual Donald A. Giannella Memorial 
Lecture. Published in Villanova Law Review-. 
Honorable Marjorie 0. Rendell, "What is the Role of 
the Judge in Our Litigious Society?," 40 Vill. L. 
Rev. 1115 (1995) . 

Copies of each of the foregoing published writings have been 
provided herewith. 

13. Health: What is the present state of your health? List the 
date of your last physical examination. 

Excellent; 12/15/95. 

14. Judicial Office: State (chronologically) any judicial offices 
you have held, whether such position was elected or appointed, 
and a description of the jurisdiction of each such court. 

Judge, United States District Court 

for the Eastern District of Pennsylvania 
Appointed by President Clinton on February 11, 1994 

Jurisdiction: Complete original federal civil and 
criminal jurisdiction. 



30 



15. Citations: If you are or have been a judge, provide 
(1) citations for the ten most significant opinions you have 

written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or where 
your judgment was affirmed with significant criticism of your 
substantive or procedural rulings; and (3) citations for 
significant opinions on federal or state constitutional 
issues, together with the citation to appellate court rulings 
on such opinions. If any of the opinions listed were not 
officially reported, please provide copies of the opinions. 

(1) See attached Exhibit A. 

(2) My decision in United States v. Roberson . 1995 WL 
314714 (E.D. Pa., May 17, 1995), rev'd 90 F.3d 75 
(3d Cir. 1996) , was reversed by the United States 
Court of Appeals for the Third Circuit. I had 
refused to suppress evidence obtained by the police 
as a result of a call radioed to the police 
regarding an individual selling drugs at a certain 
location. The Third Circuit reversed the 
conviction, finding that the informant lacked 
reliability, detracting from the probable cause 
necessary for a stop of the defendant. 

(3) U.S. V. Tidwell (94-CR-353); 12/22/95. 
Copy of opinion provided herewith. 

16. Public Office: State (chronologically) any public offices you 
have held, other than judicial offices, including the terms of 
service and whether such positions were elected or appointed. 
State (chronologically) any unsuccessful candidacies for 
elective public office. 

Committeewoman for the Republican Party, 
30th Ward, 20th Division, from 1972-1976. 
Elected position. 

17. Legal career: 

a. Describe chronologically your law practice and experience 
after graduation from law school including: 

1. whether you served as clerk to a judge, and if so, 
the name of the judge, the court, and the dates of 
the period you were a clerk; 

No clerkship. 

2. whether you practiced alone, and if so, the 
addresses and dates; 

No solo practice. 



■^ 



31 



3. the dates, names and addresses of law firms or 
offices, companies or governmental agencies with 
which you have been connected, and the nature of 
your connection with each; 

I began at the law firm of Duane, Morris & 
Heckscher as a summer clerk in 1972; upon 
graduation I became an associate, and in 1981, a 
partner. I left Duane, Morris & Heckscher to 
assume my current position as judge of the U.S. 
District Court. The firm's address is: 

Duane, Morris & Heckscher 
4200 One Liberty Place 
Philadelphia, PA 19103-7396 

b. 1. What has been the general character of your law 
practice, dividing it into periods with dates if 
its character has changed over the years? 

I spent 20 years litigating and negotiating 
financial and legal interests in the area of 
creditors' rights and commercial litigation in and 
out of state courts, federal district courts, and 
especially in the various United States bankruptcy 
courts . 

2. Describe your typical former clients, and mention 
the areas, if any, in which you have specialized. 

My clients included individual debtors and 
creditors, small to medium-size corporations and 
partnerships, and banks and insurance companies of 
local and national stature, with the subject matter 
ranging from a chapter 13 restructuring of an 
individual wage earner to complex restructuring of 
major companies. In the course of representing 
these clients, I litigated many issues, many of 
which were adversary proceedings in bankruptcy 
court or contract claims in state or federal trial 
courts. While my practice was varied, I 
specialized in representing secured creditors, 
primarily banks and insurance companies, whose 
borrowers found themselves in financial distress. 
As a result, I specialized in, and litigated, all 
areas of secured creditors' rights, including but 
not limited to: perfection of security interests, 
exercise of remedies in satisfaction of judgments, 
rights of secured creditors under bankruptcy and 
chapter 11 provisions, including rights under, and 
treatment under, plans of reorganization, lender 
liability, as well as preference and fraudulent 
conveyance issues. Other significant legal 



-7 



32 



activities included extensive negotiation of rights 
of various parties in contract disputes and in 
formal creditor workouts and chapter H 
proceedings, including negotiation of complex 
restructurings on behalf of bank groups and 
subordinated debenture holders . 

1. Did you appear in court frequently, 
occasionally, or not at all? If the frequency 
of your appearances in court varied, describe 
each such variance, giving dates. 

In examining the records of my practice since 
1988, I found that the number of court 
appearances changed radically in 1992 and 
1993. My husband became Mayor of the City of 
Philadelphia in January of 1992, and I 
delegated many of the court appearances on my 
cases to others. Also during 1992, my primary 
focus was on two major cases, both of which 
involved out-of-court restructurings of 
amounts in excess of $100 million in 
indebtedness; the firm represented, in one 
case, the bank group, and in the other, the 
subordinated debenture group. Also, during 
this time period, my department of the firm 
(the Reorganization Section) delegated much of 
the commercial litigation to a special group 
of attorneys in our Litigation Department who 
routinely did this work with and for our 
section's attorneys. During the prior four 
years, namely, from 1988 through 1991, I 
appeared regularly in court in amy given year 
on matters in which the firm represented the 
major secured creditor of a con^euiy in 
chapter 11. There were probably five to ten 
such cases in any given year. Also during 
this time period, I represented the trustee in 
a chapter 11 proceeding and appeared regularly 
in at least two complex chapter 11 proceedings 
in which the firm represented different 
classes of indebtedness. I believe that 
during 1988 through 1991, I appeared in court 
anywhere from three to eight days per month. 

Court appearances were more frequent during 
the period from 1980 through 1988 . More of 
the cases which I handled involved individual 
secured creditor rights, rather than complex 
cases, and matters such as the right of the 
secured creditor to take back the collateral 
pursuant to a hearing for relief from the stay 
were tried to conclusion frequently. I 



33 



appeared in court very regularly, perhaps as 
many as two to three days per week. 

What percentage of these appearances was in: 

(a) Federal courts. 

Most appearances were in federal courts. 
(95-100%) 

(b) State courts of record. 

Seldom (0-5%) ; appeared only in 
connection with execution on or 
enforcement of judgments, or opening of 
judgment proceedings. 

(c) Other courts. 
0% 

What percentage of your litigation was: 

(a) Civil. 
100%. 

(b) Criminal. 
0%. 



State the number of cases you tried to verdict 
or judgment (rather than settled) in courts of 
record, indicating whether you were sole 
counsel, chief counsel, or associate counsel. 

My experience prior to assuming the bench was 
primarily in the bankruptcy courts in which a 
chapter 11 case was pending. Many contested 
matters and adversary proceedings are brought 
before the court by way of complaint or 
motion, heard by the court without a jury, 
following the Federal Rules of Civil Procedure 
(made applicable by the Federal Rules of 
Bankruptcy Procedure) , as well as the Federal 
Rules of Evidence, usually in hearings lasting 
from one to three days. It is difficult to 
state "cases" that were "tried to verdict or 
judgment" because, in each instance, the 
matters involved hearings on fraudulent 
conveyances, relief from stay, preference 



ScnHte Judiciary 



34 



actions, motions to dismiss, and the like. 
Many of these were tried to conclusion, but 
not all led to the end of the case or total 
resolution of a matter. I handled my own 
cases and, except in a few instances in which 
I was assisted by an associate, I have been 
the sole and chief counsel in matters I have 
handled. I have appeared in and litigated 
more than 35 bankruptcy matters. 

5 . What percentage of these trials was : 

( a ) Jury . 
0%. 

(b) Non-jury. 
100%. 

18. Litigation: Describe the ten most significant litigated 
matters which you personally handled. Give the citations, if 
the cases were reported, and the docket number and date if 
unreported, give a capsule summary of the substance of each 
case. Identify the party or parties whom you represented; 
describe in detail the nature of your participation in the 
litigation and the final disposition of the case. Also state 
as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges 
before whom the case was litigated; and 

(c) the individual name, addresses, and telephone numbers of 
co-counsel and of principal counsel for each of the other 
parties . 

See attached Exhibit B. 

19. Legal Activities: Describe the most sicpiificant legal 
activities you have pursued, including significant litigation 
which did not progress to trial or legal matters that did not 
involve litigation. Describe the nature of your participation 
in this question. Please omit any information protected by 
the attorney-client privilege (unless the privilege has been 
waived. ) 

In 1975 I joined with a then-partner, David Sykes, 
to form a bankruptcy practice of two attorneys in 
our firm (then approximately 50 attorneys) , and 
started working for a new bank client. At the time 
that I left the firm, that client was one of the 
firm's major clients (perhaps second or third in 
overall annual billings) . I was active in 
representing that bank, primarily as a secured 



10- 



35 



creditor in workout and bankruptcy matters, for 18 
years in matters involving anywhere from $300,000 
to $80,000,000 in debt. During that time the firm 
grew to 205 attorneys, the reorganization section 
to 22 attorneys, and the client grew from a small 
bank in a community outside of Philadelphia to a 
major banking force in Philadelphia. I consulted 
actively with this client on complex strategic 
matters involving potential lender liability claims 
and commercial litigation, and I was one of their 
primary attorneys of choice on difficult issues 
which required special legal and perceptive skills 
in situations involving borrowers, participating 
banks, or parties with whom they have sophisticated 
commercial relationships. 

At the same time, I represented other single-entity clients, 
banks, insurance companies, debtors, etc., in bankruptcy 
matters and commercial litigation. 

From about 1985, my practice expanded to include 
representation of debtors, large creditors or classes of 
creditors in major national restructurings or chapter 
proceedings in, for example, Indianapolis, Denver, Pittsburgh, 
Boston, and St. Louis. Many of these matters involved intense 
negotiations over claims and issues relating thereto, 
including fraudulent conveyances, issues of absolute priority, 
rights to payments under a plan, and plan confirmation. Many 
of these matters have been in, or in the context of, a chapter 
11 case but resulted in amicable resolution of the claims or 
the matter generally. Such matters include: 

Sudbury, Inc. (subordinated debt holders) 
Allegheny International (subordinated debt holder) 
Early & Daniel, Inc. (railcar lessors) 
The Carlson Group, Inc. (debtor) 
Apex Oil, Inc. (single creditor) 
Frontier Airlines (aircraft lessor) 

I worked on such matters either as lead partner or, in the 
larger matters, alternating with another partner on the case. 

In all of the above instances, my representation involved 
analysis of the client's legal position and its relationship 
to the positions of others, identification of issues which 
enhanced or detracted from each position, plotting a course -- 
whether litigation or negotiation or a combination of both -- 
to accomplish the client's goals, and pursuing that course, 
while making any necessary adjustments based on changing 
circumstances. My approach has been active rather than 
reactive. The major "activity" outside of litigation has been 
effectively communicating -- usually orally --to clients and 
adversaries the relative positions of the parties, negotiating 



- 11 



36 



to achieve goals, and documenting the result, whether a loan 
restructure, a stipulation, an agreement or a consensual plan. 

From 1973 to 1978 I served on the board of the Young Lawyers' 
Section of the Philadelphia Bar Association. For about two 
years prior to my assuming the bench, I was an active member 
of the board of the Philadelphia Bar Foundation (the 
charitable arm of the Philadelphia Bar Association which funds 
several programs providing legal aid to the indigent) . In 
addition, I served as a Mediator for the U.S. District Court 
for the Eastern District of Pennsylvania, and was a member of 
the Bar Alternative Dispute Resolution Committee developing a 
mediation process for the U.S. Bankruptcy Court for the 
Eastern District of Pennsylvania. 

As a district court judge I have served on our court's 
Bankruptcy Committee and Arbitration Committee, and have been 
active in the Federal Judges Association Congressional Liaison 
Committee, serving as coordinator for our Circuit. 

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

1. List sources, amounts and dates of all anticipated receipts 
from deferred income arrangements, stock, options, uncompleted 
contracts and other future benefits which you expect to derive 
from previous business relationships, professional services, 
firm memberships, former employers, clients, or customers. 
Please describe the arrangements you have made to be 
compensated in the future for any financial or business 
interests . 

None. When I left my former firm to assume the bench, 
all pension funds were rolled over; I have no assets in 
the firm's plans or funds. I have ongoing interests in 
IRAs and pension funds reflected as part of assets listed 
on the attached Net Worth Statement . 

2. Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conflicts-of- interest during your initial 
service in the position to which you have been nominated. 

I will continue to recuse myself from any cases 
involving: Duane, Morris & Heckscher (my former law 
firm); Meridian Bancorp, Inc. (former client); First 
Fidelity Bank (former client) ; the Visiting Nurse 
Association of Greater Philadelphia (I am a former board 
member); University of Pennsylvania (I am an alumna and 
board member); City of Philadelphia (my spouse's 
employer); and any entity in which I have a "financial 
interest" pursuant to 28 U.S.C. § 455. I have adopted a 



12- 



37 



standing Order and waiver of disqualification procedure 
regarding parties and counsel who contributed to the 1994 
mayoral campaign in which my husband was the successful 
candidate. I will follow the dictates of 28 U.S.C. § 455 
as to disqualification due to a conflict regarding any 
other matters or interest. 

3. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your 
service with the court? If so, explain. 

No. 

4 . List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoraria, and 
other items exceeding $500 or more. (If you prefer to do so, 
copies of the financial disclosure report, required by the 
Ethics in Government Act of 1978, may be substituted here.) 

See attached Financial Disclosure Report (Exhibit C) . 

5. Please complete the attached financial net worth statement in 
detail (add schedules as called for) . 

See attached Exhibit D. 

6. Have you ever held a position or played a role in a political 
campaign? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, your 
title and responsibilities. 

Prior to my nomination in November of 1993 for my current 
judgeship on the U.S. District Court for the Eastern 
District of Pennsylvania, I made public appearances with 
or for my husband during various campaigns in which he 
was a candidate for public office: for Philadelphia 
District Attorney in 1977 and 1981; a primary campaign 
for Governor of Pennsylvania in 1986; a primary campaign 
for Mayor of Philadelphia; and a primary and general 
election for Mayor in 1991. I had no title or 
responsibility. Since my nomination and induction, I 
have scrupulously avoided all political activities. 

III. GENERAL (PUBLIC) 

1. An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged." Describe what you have done to 



.Senate Judidary - 1 3 - 



38 



fulfill these responsibilities, listing specific instances and 
the amount of time devoted to each. 

My efforts on behalf of the disadvantaged have been 
through my service to several charitable organizations, 
on whose boards I served until my judgeship appointment 
was confirmed. My primary efforts on behalf of the 
disadvantaged were through the Visiting Nurse Association 
of Greater Philadelphia; I served on its board and headed 
many of its committees for approximately 15 years. The 
VNA is the only non-profit home care entity which 
provides services to the indigent in the Philadelphia 
area, and in working with VNA, I was personally involved 
in fundraising and other efforts for the poor and 
indigent of Philadelphia. I dedicated an average of 
10-15 hours per month to VNA-related activities. For two 
years prior to assuming the bench I was also an active 
member of the board of the Philadelphia Bar Foundation, 
the charitable arm of the Philadelphia Bar Association. 
I also dedicated considerable time, generally an 
additional 15 hours per month, to active service on the 
boards of civic and cultural organizations such as the 
Market Street East Improvement Association, and Avenue of 
the Arts, Inc., and the University of Pennsylvania. 

2. The American Bar Association's Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a judge 
to hold membership in any organization that invidiously 
discriminates on the basis of race, sex, or religion. Do you 
currently belong, or have you belonged, to any organization 
which discriminaces -- through either formal membership 
requirements or the practical implementation of membership 
policies? If so, list, with dates of membership. What have 
you done to try to change these policies? 

No. 

3. Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? If 
so, did it recommend your nomination? Please describe your 
experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to 
your nomination and interviews in which you participated) . 

Not applicable; there is no such commission for Court of 
Appeals positions. I did, however, have several 
discussions with representatives of the White House 
Counsel's office, the Department of Justice, the ABA, and 
the FBI. 

4. Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be 



- 14 



39 



interpreted as asking how your would rule on such case, issue, 
or question? If so, please explain fully. 

No. 

5. Please discuss your views on the following criticism involving 
"judicial activism." 

The role of the federal judiciary within the federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism 
that alleges that the judicial branch has usurped many of 
the prerogatives of other branches and levels of 
government . 

I believe that the role of the judiciary is to be the 
interpreter and enforcer of existing law. In the process 
of such interpretation and enforcement, the judiciary 
should call upon judicial precedent, as well as examine 
the intention of those drafting relevant legislation, in 
determining the scope and bounds of its decision-making 
authority. While it is tempting for the judiciary to 
read expansions into the law, rather than await action of 
the legislative branch to do so, this temptation should 
be resisted by the judiciary in fulfilling its proper 
role. 

Some of the characteristics of this "judicial activism" have 
been said to include: 

With respect to the "characteristics" noted, I would 
comment : 

a. A tendency by the judiciary toward problem- solution 
rather than grievance -resolution ,- 

A judge should resolve the matter before him or 
her, addressing only issues at hand. While it may 
be the case that the resolution of the issue at 
hand does, and will, have broader implications for 
society at large, the judge should not attempt to 
solve problems or seek solutions broader than 
necessary to resolve the instant matter. 

b. A tendency by the judiciary to employ the individual 
plaintiff as a vehicle for the imposition of far-reaching 
orders extending to broad classes of individuals . 



- 15- 



40 



Again, a judge should provide only the relief 
necessary to address the claims of litigants before 
him or her. The judiciary should not seek out 
controversies, nor address controversies not 
immediately presented. 

A tendency by the judiciary to impose broad, affirmative 
duties upon governments and society; 

In certain limited instances, whether pursuant to 
mandamus or injunctive powers, the judiciary is 
called upon to impose affirmative duties upon 
governments and society where the wrong 
specifically to be remedied (that is, the issue 
before the court) requires it. However, such power 
should be exercised with great caution, and the 
imposition of duties in such instances should be 
narrowly drawn to address the issue at hand, 
leaving the actual application and implementation 
to other branches, to the extent possible. Also, 
in order to resolve conflicts in such situations, 
orders entered imposing such duties must be clearly 
and narrowly stated so as to avoid further 
litigation with respect to the nature and extent of 
the power of the judiciary. 

A tendency by the judiciary toward loosening 
jurisdictional requirements such as standing and 
ripeness ; and 

Jurisdictional requirements have been set by law 
and interpreted by courts. To the extent that case 
precedent adjusts jurisdictional standards and is 
controlling, it must be adhered to. As a district 
court judge, I have no authority or ability to 
loosen such requirements, and I believe that the 
appellate courts' actions in doing so must be based 
strictly upon legislation and its intent, informed 
by the requirements of the Constitution. 

A tendency by the judiciary to impose itself upon other 
institutions in the manner of an administrator with 
continuing oversight responsibilities. 

I believe that the judiciary is limited in its role 
as indicated above. The judiciary is not a 
panacea, an interpreter of society, or an overseer 
in any sense of the word. I believe it is 
inappropriate for the judiciary to conduct 
continuing oversight except in those limited 
circumstances where such relief is both required to 



.Saiale Judidnry - 1 6 - 



41 



address the harm suffered and permitted by existina 
precedent . ^ 



- 17 



42 



INDEX OF EXHIBITS 



Exhibit A - Ten Most Significant Opinions 

Exhibit B - Ten Most Significant Litigated Matters 

Exhibit C - 1995 Financial Disclosure Report 

Exhibit D - Financial Net Worth Statement 



43 



updated 12/18/96 

EXHIBIT A 

TEN MOST SIGNIFICANT OPINIONS 



U.S.D.C. 
Date Case No. Case 

09/15/94 92-CV-3310 Resolution Trust Corp. v. Farmer 

Cite : 865 F. Supp. 1143 (E.D. Pa. 
1994) 

11/08/94 93-CV-4547 Britamco Underwriters, Inc. v. 

George Giouzelis, Inc. 
Cite : 1994 WL 622109 (E.D. Pa., 
Nov. 8, 1994), aff 'd . 65 F.3d 161 
(3d Cir. 1995) 

12/29/94 93-CV-7027 Mallenbaum v. Adelphia Comm. Corp. 

Cite: 1994 WL 724981 (E.D. Pa., 
Dec. 29, 1994), aff 'd , 74 F.3d 465 
(3d Cir. 1996) 

08/16/95 93-CV-6729 LeJeune v. Bliss-Salem, Inc. 

Cite : 1995 WL 491253 (E.D. Pa., 
Aug. 16, 1995), aff 'd , 85 F.3d 1069 
(3d. Cir. 1996) 

08/18/95 94-CV-1422 Surace v. Caterpillar, Inc. 

Cite : 1995 WL 495123 (E.D. Pa., 
Aug. 18, 1995) 

10/05/95 93-CV-3701 Taylor v. Sterling Winthrop 

Cite : 1995 WL 590160 (E.D. Pa., 
Oct. 5, 1995) 

12/22/95 94-CR-0353 United States v. Tidwell 

Cite: 1995 WL 764077 (E.D. Pa., 
Dec. 22, 1995) 

3/22/96 94-CV-6906 Simmerman v. Hardee's Food Systems, 

Inc. 

Cite : 1996 WL 131948 (E.D. Pa., 
Mar. 22, 1996) 



44 



U.S.D.C. 
Date Case No . Case 

4/1/96 94-CV-1818 Stecyk, et al . v. Bell Helicopter 

Textron, Inc., et al . 
Cite : 1996 WL 153555 (E.D. Pa., 
Apr. 1, 1996) 

9/9/96 94-CV-3991 Doby, et al . v. Decrescenzo, et al . 

Cite: 1996 WL 510095 (E.D. Pa., 
Sept. 9, 1996) 



In September 1995, I sat by designation on an appellate panel of 
the United States Court of Appeals for the Third Circuit . The 
members of the panel were Chief Judge Dolores K. Sloviter, Circuit 
Judge Samuel A. Alito, Jr., and District Judge Marjorie O. Rendell 
(sitting by designation) . I authored the Third Circuit opinion in 
United States v. Brannan . 74 F.3d 448 (3d Cir. 1996). 



45 

Index to Exhibit B 
TEN MOST SIGNIFICANT LITIGATED MATTERS 

1. Bartholomew, et al . v. Northampton National Bank 

2. In re Winslow Center Associates 

3. In re Reading Tube Corporation 

4. In re Dominica V. Civitella 

5 . In re Ram Manufacturing 

6. In re Center for the Blind 

7. In re Philadelphia Athletic Club 

8. In re Bates Energy Corp. 

9 . In re Marta Group 

10. Schweibert v. Schweibert 



46 



EXHIBIT B 
SIGNIFICANT LITIGATED MATTERS 



My trial experience was gained primarily, though not 
exclusively, in the bankruptcy court system, in which the "case" is 
a reorganization proceeding, and adversary matters, sometimes 
involving actual trials, are heard by the court. I litigated 
matters in the bankruptcy courts locally and throughout the country 
in at least 35 cases. The following are examples from ten cases in 
which matters raised by the motion or complaint were litigated by 
me, as sole trial counsel, except as noted, several of which 
resulted in reported decisions. 



1 . Bartholomew, et al . v. Northampton National Bank, et al . 
Court and docket: U.S.D.C, E.D. Pa., No. 74-2948 
Cite: 584 F.2d 1288 (3d Cir. 1978) 

Summarv 

Suit by purchaser of a vacation lot against banks who financed 
purchase on basis of Truth- in-Lending, Interstate Land Sales Full 
Disclosure Act, and usury law violations. 

Client 

One of the defendants, American Bank and Trust Co. of Pa. (now 
Meridian Bank) . 

Issues Litigated 

Whether: (i) financing of the purchase of a vacation lot was 
the loan or use of money for purposes of usury law violations; 
(ii) banks that finance a purchase of a lot are liable for 
violations of the Interstate Land Sales Full Disclosure Act; and 
(iii) Truth in Lending Act violations could be asserted after one 
year from the date of the land sale contract. I, together with 
counsel for Merchants National Bank, directed the litigation and 
strategy on behalf of the banks and was responsible for the 
pleadings and briefs in the matter, especially on appeal to the 
Third Circuit . 



(continued) 



Exhibit B - Litigated Matters - page 1 



47 



Significance of Issues 

The court decided against the plaintiff and in favor of the 
banks. Issues involved the interpretation of two relatively new 
statutes and were of great significance to banks and other entities 
that financed lot sales in vacation home developments. 

Judge 

Hon. John P. Fullam, Judge, United States District Court for 
the Eastern District of Pennsylvania. (1975) 

Hon. James Hunter, III, Judge, United States Court of Appeals 
for the Third Circuit. (1978) 



Other Counsel 

Counsel for plaintiffs: 
Edward C. Toole, Jr., Esquire 
(215) 241-18184 
Michael J. Glasheen, Esquire 
(215) 241-1821 

Clark, Ladner, Fortenbaugh & Young 
2005 Market Street, 21st Floor 
Philadelphia, PA 19103 

Counsel for defendeint Merchants Bank and Trust Co. of Pa, 

John E. Flaherty, Jr., Esquire 

Dechert, Price & Rhoads 

4000 Bell Atlantic Tower 

1717 Arch Street 

Philadelphia, PA 19103-2793 

(215) 994-2128 

Counsel for Northampton National Bank of Easton: 
Bernard S. Bergman, Esquire 
(current address unknown) 

Counsel for William E. Brock, III: 

E. Parry Warner, Esquire 

Obermayer, Rebmann, Maxwell &. Hippel 

Packard Building, 14th Floor -i':.' 

15th and Chestnut Streets 

Philadelphia, PA 19102-2188 "■ - '' 

(215) 665-3226 -' -' 



Exhibit B - Litigated Matters - page 2 



48 



2 . In re Winslow Center Associates 

Court and Docket: U.S. B.C., E.D. Pa., No. 82-00020G 
Cite: 32 B.R. 685 (Bankr. E.D. Pa. 1983) 
50 B.R. 679 (Bankr. E.D. Pa. 1985) 
57 B.R. 317 (Bankr. E.D. Pa. 1986) 

Summary 

Chapter 11 proceeding of New Jersey partnership which owned a 
shopping center. 

Client 

Provident Mutual Life Insurance Company, the mortgagee. 

Issues Litigated 

(1) Relief from stay requested based upon erosion of secured 
creditor's equity cushion. 32 B.R. 685 (Bankr. E.D. Pa. 1983); 
relief granted. 

(2) Rights of secured creditor to post-petition rentals 
recognized under title theory. 50 B.R. 679 (Bankr. E.D. Pa. 1985) . 

(3) Objected to debtor's recjuest to pay attorneys' fees from 
cash collateral assets subject to mortgagee's lien. 57 B.R. 317 
(Bankr. E.D. Pa. 1986); payment of fees denied. 

Significance of Issues 

This case, relating to the extent of the interest of the 
mortgagee in post-petition rents as cash collateral, resulted in 
one of the first decisions on this issue. This issue thereafter 
became the sxibject of much litigation in our district and 
elsewhere, commencing with the case of In re T.M. Carlton House 
Partners. Ltd. . 91 B.R. 349 (Bankr. E.D. Pa. 1988), and 
subsequently addressed by U.S. District Court Judge Bartle in In re 
SeSide Co. . Ltd. , 152 B.R. 878 (E.D. Pa. 1993). Also, the decision 
has often been cited for its holding that debtors may only charge 
attorneys' fees against a secured creditor's collateral if the fees 
benefitted the secured creditor. 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

(continued) 



Exhibit B - Litigated Matters - page 3 



49 



other Counsel 

Counsel for Committee of Equity Holders: 
Leonard Goldberger, Esquire 
Wolf, Block, Schorr & Solis-Cohen 
Packard Building, 12th Floor 
15th and Chestnut Streets 
Philadelphia, PA 19102-2678 
(215) 977-2578 

Debtor ' s Counsel : 

David Fishbone, Esquire 

Formerly with 

Ciardi, Fishbone & DiDonato, PC (current address unknown) 

1900 Spruce Street 

Philadelphia, PA 19103 

(215) 546-4370 

Counsel for Trustee : 
Robert H. Levin, Esquire 
Adelman Lavine Gold & Levin, PC 
1900 Two Penn Center Plaza 
Philadelphia, PA 19102-1799 
(215) 568-7515 



Exhibit B - Litigated Matters - page 4 



50 



3 . In re Reading Tube Corporation 

Court and Docket : U.S. B.C., E.D. Pa., Nos . 87-0429T, 87-0430T 
Cite: 72 B.R. 329 (Bankr. E.D. Pa. 1987) 
73 B.R. 99 (Bankr. E.D. Pa. 1987) 

Summary 

Chapter 11 proceeding of copper tube manufacturer. 

Client 

Meridian Bank, primary secured creditor, as well as the 
government agencies participating in its loan. 

Issues Litigated 

(1) Challenged propriety of debtor-in-possession financing 
where debtor failed to prove that it had searched for available 
financing elsewhere; financing denied. 72 B.R. 329 (Bankr. E.D. 
Pa. 1987) . 

(2) Initiated and litigated Motion for Appointment of a 
Trustee based upon allegations of fraud, mismanagement and self- 
dealing of company's shareholders. Discovery ruling reported at 73 
B.R. 99 (Bankr. E.D. Pa. 1987). 

Significance of Issues 

The Motion for Appointment of a Trustee became a trial of 
issues of alleged fraud and mismanagement conducted on an expedited 
basis, with discovery encompassing 20 to 25 days over 3 months and 
the trial itself lasting for several days during a 3 -week period in 
May 1987. Extensive expert testimony as to financial dealings was 
presented. The matter was settled before conclusion of the trial, 
paving the way for the plan of reorganization with favorable 
treatment of our client's claims and release of all claims against 
our client, including alleged lender liability. 

Judge 

Hon. Thomas M. Twardowski, Bankruptcy Judge, United States 
Bankruptcy Court for the Eastern District of Pennsylvania. 

Other Counsel 

Debtor's Litigation Counsel: 
Louis Lustenberger, Esquire 
Donovan & Leisure 
30 Rockefeller Plaza 
New York, NY 10112 
(212) 632-3290 



(continued) 

Exhibit B - Litigated Matters - page 5 



51 



Debtor's Bankruptcy Counsel: 
Bruce Frankel, Esquire 
Angel & Frankel 
4 60 Park Avenue, 8th Floor 
New York, NY 10017-3191 
(212) 752-8000 

Counsel for Creditors Committee: 
Charles Phillips, Esquire 
Baskin Leisawitz Heller Abramowitch, P.C. 
2201 Ridgewood Road, Suite 400 
Wyomissing, PA 19610 
(215) 372-8427 



Exhibit B - Litigated Matters - page 6 



52 



4 . In re Dominica V. Civitella 

Court and Docket: U.S. B.C., E.D. Pa., No. 80-01083K 
Cite: 14 B.R. 151 (Bankr. E.D. Pa. 1981) 
15 B.R. 206 (Bankr. E.D. Pa. 1981) 

Summary 

Chapter 11 proceeding of apartment complex. 

Client 

The debtor. 

Issues Litigated 

Rebuffed constant attempts of three secured creditors to cause 
case to be dismissed, converted, or to file their own plan of 
reorganization. 

Successfully reorganized debtor and distributed one hundred 
cents on the dollar to unsecured creditors in Plan of 
Reorganization. 

Resulted in frequently-cited reported decision holding that 
Disclosure Statement must be based on statements of fact, not 
opinion. 14 B.R. 151 (Bankr. E.D. Pa. 1981); reconsideration 
denied, 15 B.R. 206 (Bankr. E.D. Pa. 1981) . 

Significance of Issues 

The client was a widow whose son was managing the complex. 
The personal, business, legal and strategic aspects were very 
challenging. The secured creditors were extremely aggressive and 
constantly commencing litigation to try to take over the property. 
We were able to prevail over them and confirm a 100% plan --a rare 
result in a bankruptcy case. I handled all of the litigation and 
negotiations in order to achieve this result. 

Judge 

Hon. William King, Judge, United States Bankruptcy Court for 
the Eastern District of Pennsylvania. 

Other Counsel 

(Each of the following represented a secured creditor) 

Rush T. Haines, Esquire 
Drinker, Biddle & Reath 
1100 P^fB Building 
Broad and Chestnut Streets 
Philadelphia, PA 19107 
(215) 988-2944 
(continued) 

Exhibit B - Litigated Matters - page 7 



53 



Neal B. Colton, Esquire 
Dechert, Price & Rhoads 
4000 Bell Atlantic Tower 
1717 Arch Street 
Philadelphia, PA 19103-2793 
(215) 994-2515 

Matthew Siembieda, Esquire 
(215) 569-5609 
Samuel Becker, Esquire 
(215) 569-5527 

BlanJc, Rome, Comisky & McCauley 
Four Penn Center Plaza 
Philadelphia, PA 19103 



Exhibit B - Litigated Matters - page 8 



45-964 98 - ^ 



54 



5 . In re Ram Manufacturing 

Court and Docket: U.S. B.C., E.D. Pa., No. 83-OlOlG, 83-0102G 
Cite: 32 B.R. 969 (Bankr. E.D. Pa. 1983) 
36 B.R. 822 (Bankr. E.D. Pa. 1984) 



Summary 

Chapter 11 proceeding of electronics manufacturer. 

Client 

Meridian Bank, secured creditor. 

Issues Litigated 

Whether Meridian was entitled to relief from the automatic 
stay due to lack of adequate protection. Relief from stay granted 
at 32 B.R. 969 (Bankr. E.D. Pa. 1983) ; reconsideration denied 36 
B.R. 822 (Bankr. E.D. Pa. 1984) . 

Significance of Issues 

The bankruptcy court found that accounts receivable arising 
from pending lawsuits were too uncertain to be considered for 
purposes of adequate protection, and proper valuation standard for 
company which had ceased operations was distress value. 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

Other Counsel 

Counsel for Debtor: 
Thomas B. Rutter, Esquire 
Rutter, Solomon & DiPiero 
The Curtis Center, Suite 750 
Philadelphia, PA 19106 
(215) 925-9200 

Counsel for Trustee: 

Donald M. Collins, Esquire (retired) 

Formerly with 

Stradley, Ronon, Stevens & Young 

2600 One Commerce Square 

Philadelphia, PA 19103-7098 

(215) 564-8080 



Exhibit B - Litigated Matters - page 9 



55 



6 . In re Center for the Blind 

Court and Docket: U.S. B.C., E.D. Pa., No. 79-8 18 -EG 
Cite: (none) 

Summary 

Chapter 11 proceeding of non-profit corporation serving the 
blind. 

Client 

The debtor. 

Issues Litigated/Significance of Issues 

This case was not adversarial, but it was unique in that the 
debtor confirmed a plan providing for the transfer and continuation 
of the Center's endowment intact for the benefit of the intended 
beneficiaries, i.e., the blind, and payment to unsecured creditors 
of approximately fifteen cents on the dollar. Given the competing 
interests of creditors versus the blind community, this case 
required social and political skills as well as the negotiation and 
litigation skills normally required in a standard Chapter 11 case. 
[Chapter 11 was commenced in 1979 and concluded in 1983.] 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

Other Counsel 

Counsel for Rudolphy Residence: 

Christopher H. Gadsden, Esquire 

Drinker, Biddle & Heath 

1100 PNB Building 

Broad and Chestnut Streets 

Philadelphia, PA 19107 

(215) 988-2780 

For Attorney General , Commonwealth of Pennsylvania : 
James Sutton, Esquire 
(Current address unknown) 

Counsel for Unsecured Creditors: 
Lawrence Lichtenstein, Esquire 
Buchanan Ingersoll 

Professional Corporation 
12 00 Two Logan Square 
18th Sc Arch Streets 
Philadelphia, PA 19103-6933 
(215) 665-3923 



Exhibit B - Litigated Matters - page 10 



56 



7 . In re Philadelphia Athletic Club 

Court and docket: U.S. B.C., E.D. Pa., No. 80-02028G 
Cite: 17 B.R. 345 (Bankr. E.D. Pa. 1982) 
20 B.R. 325 (Bankr. E.D. Pa. 1982) 

Summary 

Chapter 11 proceeding of athletic club facility in Center City 
Philadelphia. 

Client 

Trustees of Central States, Southeast and Southwest Areas 
Pension Funds, Victor Palmieri & Co. as Investment Manager, primary 
secured creditor. 

Issues Litigated 

Initiated a motion for relief from the stay and entered into 
a stipulation providing for automatic relief from stay upon the 
happening of certain events. Upon defaults by the debtor, relief 
from stay was to be automatically enforceable. Debtor defaulted, 
then contested such automatic relief in an injunction proceeding. 
The bankruptcy court upheld the stipulation providing that relief 
from the stay was automatically enforceable. 17 B.R. 345 (Bankr. 
E.D. Pa. 1982). Subsequent stipulation approved at 20 B.R. 325 
(Bankr. E.D. Pa. 1982) . 

Sicmif icance of Issues 

The court ' s opinion is often cited as authority for 
enforcement of court -approved stipulations, especially relating to 
relief from stay for secured creditors who are otherwise 
forestalled from executing on property which constitutes their 
collateral . 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

Other Counsel 

Debtor ' s Counsel : 

Pace Reich, Esquire 

Clark, Ladner, Fortenbaugh &. Young 

2005 Market Street, 21st Floor 

Philadelphia, PA 19103 

(215) 241-1330 



(continued) 



Exhibit B - Litigated Matters - page 11 



57 



Counsel for Partners of Owner of Debtor: 

Stuart H. Savett, Esquire 

Savett, Frutkin, Pidell & Ryan, PC 

320 Walnut Street, Suite 508 

Philadelphia, PA 19106 

(215) 923-5400 

Counsel for Trustee: 
Melvin Lashner & Lashner 
1604 Locust Street 
Second floor 
Philadelphia, PA 19103 
(215) 732-9229 



Exhibit B - Litigated Matters - page 12 



58 



8 . In re Bates Energy Corp. 

Court and Docket: U.S. B.C., N.D. Ohio, No. B-86-476-Y 
Cite: (none) 

Summary 

Objection of creditor, the Bethlehem Corporation, to the 
proposed sale of assets of Bates Energy Corp. in Chapter 11 
proceedings . 

Client 

Bethlehem Corporation, a major unsecured creditor. 

Issues Litigated 

Client believed that the proposed sale of assets was for the 
benefit of insiders of the company. I traveled to Youngstown, 
Ohio, in June of 1986 on a few days' notice and put on evidence 
during four days of hearings to demonstrate insider dealings and 
preferences, sham transactions, undercapitalization, and detriment 
to creditors. The court approved the sale over objection. 

Significance of Issues 

Bankruptcy courts are to scrutinize transactions involving 
insiders . Court approval of a sale of assets of a debtor company 
presents a difficult predicament for a bankruptcy judge where the 
company has little prospect for reorganization without such a sale. 
While the case itself may not appear to be significant, what was 
significant at the time, and since that time, was the fact that I 
put on a substantial case of insider dealing on a few days' notice, 
without the opportunity for any discovery. Notwithstanding the 
fact that I was not successful, I believe I raised serious doubts 
about the sale that should have been sufficient to warrant its not 
being approved. 

Judge 

Hon. William T. Bodoh, United States Bankruptcy Court for the 
Northern District of Ohio; Case No. B-86-476-Y. (Court's opinion 
not reported. ) 

Other Counsel 

Our local counsel : 

Jeffrey Baddeley, Esquire (current address unknown) 
Formerly with 
Squire, Sanders & Dempsey 
4900 Society Center 
127 Public Square 
Cleveland, OH 44114-1304 
(216) 479-8500 
(continued) 

Exhibit B - Litigated Matters - page 13 



59 



Debtor's Counsel: 
David J. Naftzinger, Esquire 
Thompson, Hine & Flory 
3900 Society Center 
127 Public Square 
Cleveland, OH 44114-1216 
(216) 566-5500 

Counsel for Mellon Bank (secured creditor) 

Eric A. Schaffer, Esquire 

Reed, Smith, Shaw iSc McClay 

James H. Reed Building 

435 Sixth Avenue 

Pittsburgh, PA 15219-1886 

(412) 288-3131 



Exhibit B - Litigated Matters - page 14 



60 



9 . In re Marta Group 

Court and Docket: U.S. B.C., E.D. Pa., No. 83-01276G 
33 B.R. 634 (Bankr. E.D. Pa. 1983) 

Summary 

Chapter 11 debtor of appliance wholesale cooperative. 

Client 

Emerson Quiet Kool Corporation, secured creditor, 
seller/ consignor of appliances to the debtor. 

Issues Litigated 

The validity of consignment and/or secured creditor 
relationship as between Emerson Quiet Kool and the debtor. 

Significance of Issues 

The court was called on to determine who should suffer the 
consequences of an improperly filed financing statement: the 
debtor, who contributed to the improper filing by dealing with 
Emerson under a prior name, or Emerson, who should have made 
certain that its interest could be determined from a search of 
relevant records. The court determined that the onus should be 
imposed on the secured creditor, who had the burden of showing that 
the discrepancy in debtor's name was not "seriously misleading." 
Also, the court concluded that consigned goods delivered after 
notice of filed financing statements are not property of the 
estate. 33 B.R. 634 (Bankr. E.D. Pa. 1983) . 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

Other Counsel 

Counsel for Debtor: 

Pace Reich, Esquire 

Clark, Ladner, Fortenbaugh & Young 

2005 Market Street, 21st Floor 

Philadelphia, PA 19103 

(215) 241-1330 



(continued) 



Exhibit B - Litigated Matters - page 15 



61 



Counsel for Creditors Committee: 
David S. Hope, Esquire 
Stradley, Ronon, Stevens & Young 
2600 One Commerce Square 
Philadelphia, PA 19103-7098 
(215) 564-8168 

Counsel for other secured creditor: 
Howard T. Glassman, Esquire 
Blank, Rome, Comisky &. McCauley 
Four Penn Center Plaza 
Philadelphia, PA 19103 
(215) 569-5568 



Exhibit B - Litigated Matters - page 16 



62 



10 . Schweibert v. Schweibert 

Court and Docket: Phila. C.C.P., Sept. Term 1975, No. 4769 
Cite: (none) 

Summary 

Suit in the Court of Common Pleas of Philadelphia County by a 
wife against her psychiatrist husband for enforcement of the terms 
of a separation agreement. 

Client 

Husband. 

Issues Litigated 

The matter was ultimately settled, but not without substantial 
discovery and negotiation involving the interplay of equity, 
domestic relations, and the meaning of legal terms and conditions 
in accordance with their intent. 

Significance of Issues 

The legal issues were less significant than the learning 
experience for me, personally, to be dealing with a dispute of this 
nature in a commercial context. The matter was ultimately 
satisfactorily resolved by negotiation of a definitive agreement 
that had the clarity lacking in the originally negotiated 
separation agreement. The significance to the client was probably 
much greater than the significance to the client of any other 
matter I have worked on . 

Hon. Calvin Wilson, Judge of the Court of Common Pleas for the 
County of Philadelphia. 

Docket number not obtainable. 

Other Counsel 

Jerome Charen, Esquire 
(current address unknown) 



Exhibit B - Litigated Matters - page 17 



63 



AFFIDAVIT 



I, MARJORIE O. RENDELL, do swear that the information provided in 
this statement is, to the best of my knowledge, true and accurate. 




Sworn to and subscribed 

this 7th day of January, 1997 



NOTARY PUBLIC 



V NOTABAL SEAL 

SUZANNE R. WHTTE Notary Public 
Crty o( Philadelphia. Phila. County 

My Commissiofi Expires Dec. 11. 1998 



FINANCIAL DISCLOSURE REPORT 

FOR CALENDAR YEAR 1995 



Report Heqnlrntl bv the Ethics 
Rflform Act ot 1*>H9, Pub 
10 I - l')H . Ntivnmbar JO, 19 

(S use App f>. 101-1131 



RENDELL, MARJORIE 0. 


J Court or Org.mUat Ion 

U.S.D.C. (E.D. Pa.) 


) Data of Report 

05/13/96 
(cev. 8/14/96) 


t. TltU l/MtlcU m )u.1<i«. ln,licat« ..cclv, oc 

.■*fnioc scatufl. Haijlacraco ludqas IndLcace 
r»U- or parc-clma) 

DISTRICT COURT JUDGE (ACTIVE) 


S Report Type Icheck jpproprlJtn typel 
Nomination. Date / / 


6. Reporting Purlod 

Ol/Ol/OS - l2/n/95 


[nitUl J(. Annual Final 


T. Oumbers oc Office Address 

UNITED STATES DISTRICT COURT 
SOI MARKET STREET, ROOM 3114 
PHILADELPHIA, PA 19106 


a. On the basia of the information contained in this Report and 
any modifications pertaining thereto, it Is, In my opinion, 
in compliance with applicable laws and regulations 

Reviewing Officer Date 


IMPORTANT NOTES: The inscrucCLona accompanying chia form muse be followed- Complece all parts, 
checking the NONE box for each section where you have no reportable information. Sign on last page 



I. POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.) 

POSITION NAME OF ORGANIZATION/ENTITY 

NONE {No reportable positionsi 



Director and Vice-Chair 



Co-Trustee 



Continued after Section VIII 



Avenue of the Arts, Inc. 



T/U/W of Mary B. Osterlund (Mother) 



U. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.) 

DATE PARTIES AND TERMS 



n 



NONE (Wo reportable «greemenC3l 



n. NON-E*fVESTMENT INCOME. (Reporting individual and spouse; see pp U-2S of In 

DATE SOURCE AND TYPE 



I] 



NONE (No reportable 



1995 City of Philadelphia (spouse salary - amount n/a) $ .DC 

$ . 



65 



FINANCIAL DISCLOSURE REPORT 



RENDELL, MARJORIE 0. 



05/13/96 



IV. REIMBURSEMENTS and GIFTS -. transports ion. lo.l.,lng. tood. ,nt,rc..ln™nc 

Hn.rUi.l.?* thoan to ■poiis« *nd dependent chUdr«n, ua« cha p^renchMC ICAls "(Si- ^nd "iDCI" to In.lLcita reportabLa 
calmbursemonts and glCts race Ivod by spouao and depondanc children, roBpectW»*W Sno pp afi-ai of InscrMctlona 

SOURCE DESCRIPTION 

I NONE INo ,uch reporcbla roLmbura.n,e„t3 or .jUtsl 

Academy Ball - Dinner & Concert 1/28/95 

Penna .Society reception&dinner 12/8/95 

Trip to All Star Game 7/9-11/95 (Dallas) 

Coooerstown Baseball Hall of Fame 7/29-30/95 
$282 toward air fare (spouse speaking tour) 
$500 toward lodging (spouse speaking tour) 



Phi 


ladelphia 


Orchestra 




PNC 


Bank 






Phi 


ladelphia 


Phillies 




Phi 


ladelphia 


Phillies 




s 
Penn Club Fl 


orida Gold 


Coast 


°Phi 


la. Club 


of Palm Beach 


See 


Section 


VIII 





D 



OTixER GU" IS. (Includea chose Co spouse and dependenc children.- use Che parenchecicals '(S)' and *{DC)" Co 
indicate other gifts received by spouse and dependenc children, respectively. See pp. 30-33 of Inscrucci* 

SOURCE DESCRIPTION Vf 

NONE (No such reportable jlCcsl 

Chelsea House Publishers Justices of the Supreme Court 

Please see Section VIII 



s 


150.0 


s 


0.0 


s 


s 



/T. LIABLLlTrEo. (includes chose of spouse «nd dependenc ctiildren; indlcace where Applicable, person responalble 

for liabilicy by using che parencheclcal ' (S) ' Cor separate llablllcy of che spouae, '(J)' for joinc liability of 
reporting individixal and spouse, and '(DC)' for llabilicy of a dependenc child. See pp. 34-36 of Inatnicclons . ) 

CREDITOR DESCRIPTION VALUE CODE 



D 



NONE (No reporcable li 



United Savings Bank 1/2 mortgage on vacation duplex 

(one rental prop.; one personal use 



<j • iidii.cim ■'ii.'.om. 



66 



FINANCIAL DISCLOSURE REPORT 



RENDELL, MARJORIE 0. 



0AC4 Of Report 

05/13/96 



' (LIU. 0/14/00) 



Vlt. PaKC I INVESTMENTS and TRUSTS 

^lul .lopaiuLitic clilldi>»n Ssa pp J7-SJ 



A. 
Oeaci-tpcion of Aaaats 

(including cmsc jsseca) 

[ndlcate where ippUcable, owner oC 
thff asset by using the p.irenthetlcal 
"(Jl- Cor (oint ownership ot report- 
ing indlvidujL and spouse, "(S)^ Cor 
separotd ownership by spouse. - (DCl " 
foe ownership by dependent child. 

Place -1X1- after each asset 
exempt (rom prior disclosure. 


B 
Income 
during 
reporting 
period 


C. 

Crcaa value 

.>t end of 

reporting 

period 



Tranaactiona during reporting period 


(1) 

Amt-l 
Code 
(A-H) 


(2) 
Type 

^I^ni'or 
Int.) 


(L) 

Value: 
Code 
(J-P) 


(2) 

Value 
Metl>od3 
Code 
.O-n) 


(1) 
Type 

bSy' iell. 
merger, 
redemo- 


IC not exempt from diacloauro 


(2) 

Date: 
Month 
Day 


(!) 

Value2 
Code 
(J-P) 


Calm 
Code 
(A-H) 


(SI 

tdenclcy of 

buyer/seller 

(If private 

transaction) 


NONE (No reportable 


















1 


1 Schwab Money Market Fund (IRA 
rollover) (includes lHi2 FDR95I 


S 


Dividend 


K 


T 












3 Vanguard Intermediate Treasury 
(IrX rollover) 


" 


Dividend 






sale 


11/06 


L 


D 




' T^Voidcur" '"" ""^ 





Dividend 


L 


T 












4 Berger 101 {IRA rollover) 


A 


Dividend 






■ale 


07/10 


K 


B 




colloverl 


a 


Dividend 






sale 


09/28 


r 


A 




6 Server 100 IIRA rolloverl 


* 


Dividend 






sale 


07/10 


L 







7 Brandyvtne Fund (IRA rollover) 


D 


Dividend 


L 


T 












8 Oa)cmarlc Fund (IRA rollover) 


B 


Oividend 


X 


t 














A 


Dividend 


K 


T 


sale/pt 


07/10 


J 


C 




" VziSi SKov^if" '"-""" 


» 


Dividend 






sale 


07/10 


« 


D 




11 Scudder Global Fund (IRA 
rollover) 


* 


Dividend 


K 


T 












12 SOidder Global Snail Co. (IRA 
rollover) 


A 


Dividend 






sale 


09/26 


J 


B 




13 20ch Century Int'l (IRA 
Rollover) 


A 


Dividend 


« 


T 












14 Schwab (4oney Market IIRA 
concrlb) 


A 


Dividend 


J 


T 












Contrib ) 


* 


Dividend 






sale 


09/26 


J 


A 




U Kjuttman F.ind (IRA Contrtb) 


A 


None 


^ 


T 












17 Sch»»b Money Market ( (RA 


- 


Dividend 


^ 


T 












l» Pl.lellt/ OaUnce.l Fund IIRA 
UoUover) (.•!) 


A 


niv(„„„„ 






eale 


09/26 


J 


A 




' !Sr2^?''3ir5J) ^:l\^2^L 


'lua n.5l 


001 to 32.500 C-52,501 to SS.OOO D-SS.OOl to SIS. 000 1 






' TlircSr-?! 4 0,) i:i^^^r^.^^^„.„.o 5:?iS<,";ii(^?o'5?:^33.ooo^:2^?,°?iar,?y§l!o°23o -"o— o „oo.ooo 


, -3.u,^M.n^,o.,„, ..A^r.,,,,.__ -;---—""- s:;:;Tr;:5 T-c..,.M,.rk,t 



67 



FINANCIAL DISCLOSURE REPORT 



RENDELL, MARJORIE 0. 



M-, of Rcporr. 

05/13/9S 



(luu. 0/1 - 4/ 96- 



VII. P;«Ko 2 INVESTMENTS and TRUSTS . uco. 

.«n,l .l.iioii.Ui.t chlUlren. Sea pp )7.s< o( In. 



Description oC Asaeta 
(including truHt .issats) 

indlc.ice where applicable, owner ot 
the Asset by using the parenthetical 
"(J)' Cor loint ownership of report- 
liw indLViiiu.xl .»nd spouse. MSl'^for 
aeparace ownership by spouse. MOC) • 
Cor ownership by dependenc child. 

PUca '4X1" 4fter each asaet 
exempt Croa prior disclosure. 


a. 

tncome 
during 


C 
Crosii value 

reporting 
p«>rlod 


Trana.iCtions during reporting period 


III 

Amt 1 
Code 


121 

^iSTor 
int.! 


111 

V»lue2 
Code 

IJ-Pl 


Vjlue 
Hethodl 
Code 
lO-wl 


buy. sell, 
merger. 

"ion? 


te not exempt from disclosure | 


(21 
Date; 

Day 


(11 

Value2 
Code 
(J-PI 


Oalnl 
Code 
(A-Hl 


(51 

Identity of 

buyer/seller 

(if private 

transaction! 


NONE (No reportable 
transactions! 




















19 Schwab ^toney Market (IRA 
Contribl {Si 


* 


Dividend 


J 


T 












20 eerqer 100 (IRA Contrib) (S) 


A 


»one 






sale 


07/10 


« 


C 




" xjsnj?;,^siiisii^j.-i,"""' 


D 


Rent 


" 


" 














A 


None 


J 


T 


»/d 


5/ IS 


J 






23 Public Service Enterprise Crp 


A 


Dividend 


J 


T 












» T,ur.^i^.i.f.r" " '^' 


A 


Dividend 


J 


T 


Pr . Ret . 


09/15 


J 






2S Hunl Inv Tnuc Series 13 (Jl 
(19941 lime 1 of 31 


A 


Dividend 


J 


T 


Pr.Rec. 


08/15 


J 






2S Muni Inv Trust Series 13 (Jl 
lline J o£ Jl 










Pr.Rec. 


12/15 


J 






J7 Prince Geos Cty 0% 12/17/97 
IJ) 


* 


Interest 


J 


T 












" iia;5f siss'^f tSTiitSe i »« 3. 


B 


Dividend 


I 


T 


buy 


05/94 


L 






" ?5rii!nf 5'5^-;r™ ^« "= 










sale 


4/10 


I. 






» ^rixi";!?"??— •— 










buy 


11/07 


K 






31 Schvsb T»x E«e«jic Honey Marlcet 
(Jl 


e 


Dividend 


J 


T 


buy 


05/94 


« 






" f5nj?nr?'Sf^!r-"— 


B 


Dividend 


J 


T 


buy 


05/94 


L 






31 Strong Short Term etc lline 2 
of 31 










sell 


4/10 


< 






14 Strong Short Term etc. (line 1 
of 11 










sell 


11/06 


K 






" ?jsT'i5?(T;si r^fST- --^ 


c 


Dividend 


1. 


T 


buy 


5/74 


" 






1« Vannuerd Muni ..t; (line 2 of 










snll 


4/10 


>- 


^ 




' !!i5r?^?"Si=rsji s:!ics3i''fo'5?;, ^:i^:^z^?^]^o., g:^;o3°Jortrirs„o,o„„ ^:^^i>:^ z['oS3°„„o 


' ^3ircSr;i . o>. i:in^^rL^y^..... S:?i3.^Sii^?o'5?:SS2.noo t:2S2;°2i.S%!?3So°33o -— - " ""-"^ 


■ ^3irc37-c^,-'" ^i&i-i^iL ;s;;"-' '-- -- 3:s:nrt^s 



68 



FINANCIAL DISCLOSURE REPORT 



Nama oC Pnnon Rnportinq 

RENDELL, MARJORIE 0. 



Utrt oC Alport 

05/13/96 



VII. Payc 3 INVESTMENTS and TRUSTS - i„c<», 

and JepanJenC children. See pp. ]7-S4 of tns 



(cev. 8/14/9 



Dodcrlpcton at Adapts 
(Including tiTHC .naetill 

tndlote -h.!.n ..ppUc.ihU. o»ner o( 
Mi^ _.!ia»r. hy uj ui-^d'^i^t)' ''" = "« 'CJ I 

ii'iq i..iUviiu.i'l"^jnj' 'yoJil?,''- ISl'^'^toc 
dop.-irAC« o«ntfrship by spou*o. "(DC)" 
eoc ownorsnip by Jependanr child. 

Pljca "(Xl- *£ter each aaaec 
axampc erom prior diaclosuce. 


t ncome 
during 
reporting 
period 


Ci-oea value 
.ic end of 
report Inq 
period 



Tranaactiona during reporting period 


Amt.l 
Code 


(2) 

Type 

d!v^ • 


(I) 

Valuei 
Code 
(J-P) 


Value 
MethodJ 
Code 

lO-W) 


(I) 

buy. sell, 
merger, 
redemp- 
Clonl 


It not exempt from dlacloaura 


(21 
Datei 

Day 


(J) 

Value2 
Code 


H) 

Oalnl 
Code 


(S) 

Identity of 

buyer/seller 

(!( private 


NONE INo rtpoctabla 




















n BeneeiclJl - CO IDCl 


» 


incereac 


J 


T 












19 DuPont IDCl 


A 


Dividend 


J 


T 












39 Huffy Corp IDCl 


* 


Dividend 


J 


T 












40 Meridian Bancorp (DC) 


A 


Dividend 


J 


T 












41 Toya R Oa (OCl 


A 


Dividend 


J 


T 












42 Ctt Accel Tray Sn 0% 11/99 
(DCI 


A 


incereac 


J 


T 












43 Schwab Money Marlcec Fd (DC) 


A 


Dividend 


J 


T 












44 Pederated 2-S hr. Oovt. (IRA 


* 


Dividend 


K 


T 


buy 


11/07 


K 








A 


Dividend 


.c 


T 


buy 


07/11 


K 






" Olne I Sl"2f'"^'' "" "'°' 


B 


Dividend 


K 


T 


buy 


07/12 


K 






47 Dodge t Cox acoe)c (IRA R/0) 
(line 2 of 2) 










buy 


09/29 


J 






49 Oreyfua S . I Oovc . (IRA R/0) 


* 


Dividend 


L 


T 


buy 


09/27 


« 






49 Dreyfus S.I. Govt. (IRA R/0) 










buy 


11/07 


L 






SO FAM Value (IRA R/0) 


* 


Dividend 


K 


T 


buy 


07/11 


K 






SL Janua Fund (IRA R/0) 


S 


Jividend 


K 


T 


buy 


07/11 


K 






52 PA. Mutual IIIIA R/OI 





Dividend 


J 


T 


buy 


07/11 


J 






5) MAS Equlf/IIBA «/OI 


c 


OlvLrlnnd 


K 


T 


buy 


07/12 


K 






„ S,C,n incrnatloo^l ( (,M R/0) 


A 


Oi-/i<l.»n<J 


K 


T 


buy 


„,/27 


K 






' !3;r?^?"3i<^rs3, i^[^zrL^^.... in^i^ik^tJi^o.., mWo^wi^r...... sisirrinis jt^srooc 


' T^ircSr-i V o„ i:i&/!^ri.^^...„,. 5:?i3."^ii^?o'5!:S3S,o,. i:i^^l!^^,l]ii^^. — ■°"' " »— 


, v.,,.,^M,u,;.o,.,„„ 0:a,..j..u;.;., 




'i'S,',' 


.rU-.,( 




'" i:^:"'^ 


te.i 




-'■ 


~mmti/M.tcktz 



69 



FINANCIAL DISCLOSURE REPORT 



RENDELL, MARJORIE 0. 



OS/13/96 



VII. Pago 4 INVESTMENTS and TRUSTS 

^n.t .iepandanc chlUlran. S*,n pp JT-s-* 



(rev. 8/14/96) 



( [ncludoH choaa of spouan 



Oe;ii:i'tpc ton o( Aaaets 
liiioluJlnq tiMOt a«>ot«l 

tn.llc.it- »h»r« dp(>Hcabl«. o«ner o( 
cne j.»« 6y uslnq ;ho p.irenchetlc«I 
•IJ)" for lolnc o«n<sr«hlp ol ceporc- 
Inq inJivu^i.,U .nJ jpou.e, •ISl'^ (or 
Sfparjte o«ner9hlp by spouje. 'IOC)* 
for ownersnip by dependonc child. 

PUco -(Xl- Jtcer each «sec 
exetnpc (rom prior dtacloauce. 




durinq 
report inq 
period 


c. 

Cross value 
.It end o( 
report log 
period 


Tranajcciona during raporcmg parLod 


(11 

Amc.l 
Code 
(A-H) 


(2) 
Type 

(e.q.. 

dl«' . 


Value: 
Code 
IJ-PI 


C) 

Value 
Mechod] 
Code 
(Q-U) 


buy; aell, 
merger, 
redemp. 
tlonl 


t( not axempt (rom diacloaura ] 


(2) 

Date: 
Month 
Day 


(1) 

Value2 
Code 
(J-P) 


(4) 

Calnl 
Code 


(SI 

Identity o( 

buyer/siller 

(i( private 


NONE INo reportable 
income, taseta, or 




















SS soCen Intemacion*! (IS) (IRA 
Contribi 


'^ 


Dividend 


J 


T 


buy 


OS/27 


J 






5S SoCen Incemaclonal (S) 


A 


Dividend 


J 


T 


buy 


09/27 


J 






S7 mllum BUir Crowch (SI 


* 


Dividend 


K 


T 


buy 


07/11 


« 






51 ATkT (J) 


* 


Dividend 


J 


T 


Inherit 


06/01 


J 






S9 Abboce Laboracories (J) 


A 


Dividend 


^ 


T 


Inherlc 


06/01 


J 






eo Coca Cola (J) 


* 


Dividend 


J 


T 


Inherit 


06/01 


It 






61 Olebold (Jl 


* 


Dividend 


J 


T 


inherit 


06/Cl 


J 






62 Wale Oianey Co. (J) 


* 


Dividend 


J 


T 


Inherit 


06/01 


J 






fi3 Federal Nac'l Morcqage Assoc. 


* 


Dividend 


J 


T 


Inherit 


06/01 


X 






64 Cannecc (J) 


* 


Dividend 


^ 


T 


inherit 


06/01 


- 






6S General Eleccrlc (J) 


A 


Dividend 


J 


T 


inherit 


06/01 


K 






66 Cillecce Co. (J) 


* 


Dividend 


J 


T 


Inherit 


06/01 


K 






67 Household Incemaclonal (J) 


A 


Dividend 


J 


T 


Inherit 


06/01 


J 








A 


Dividend 


J 


T 


inherit 


06/01 


« 






67 McDonalds Corp. tj) 


A 


Dividend 


J 


T 


inherit 


06/01 


« 








A 


Ol/ldend 


. 


T 


inherit 


06/01 


J 






71 p-palco Inc. (J) 


A 


Dlvlrttn.l 


J 


T 


inherit 


06/01 


J 






7. -.U.«r. S..or„. inc. U, 


A 


Oivl.ltin'l 


.- 




inherit 


06/01 


^ 






' in^rc;;?'s.rs;) i:l[^2rl^^.....„ ?:i^.^!i^^-?iSs%„o ^^k,^^^Uo.o ^:i^^i>^i\^^..o 


' Tsrcsr-ji . p„ i:i\^:;!zri:^i..n..„ ^:i^ii;;!i^^t^n:^...o ^:2J?,°"U^?!3^6°sSo -^^ "- " ""•""■ 


, V.U,^-,ch^ -:,... ^..,,r....,^ .., .,n.„ J-Aja^n. ..,:,ah...r.,r 



70 



FINANCIAL DISCLOSURE REPORT 



N.^m« of Pnraon Roporclnq 

RENDELL, MARJORIE O. 



D.ICI1 oC (tupocc 

05/13/96 



(im;. O/H/9 



VII. rage S INVESTMENTS and TRUSTS - uco™. v.iu,. t 

and dopondont cntldron Sao pp. 17.54 ot [natructlon.. I 



D«acrlpclon at Aaanti 
1 including tnmc a««ta) 

Indlcata «hera appUcabla, o*mer oC 
the .»«aot by uatmj the parenthetical 
•IJI" Coc lolnt o«nerihlp of raporc- 
Inq IndLvlJuAl ^nd spouae. '(S)^ Cor 
aep.iraca o-norahlp by apouaa, • (DC) " 
eor ownership by dependant child. 

PUca -(X)" after each aaaat 
exempt <ro« prior diacloaure. 


B 
Income 
durlnq 
reporting 
period 


C 
Croas value 

reporting 
pirlod 



Tranaactlona during reporting period 


(11 
Code 


(31 
, Type 

^Irni'or 


(11 

ValueJ 
Code 
(J-P) 


131 

Value 
Method! 
Code 
(O-ai 


1^1. 

buy: sell, 
merger, 
redemo- 


tC not exempt from disclosure 


(21 

Date: 
Month 
Day 


(11 

Ualuo2 
Code 
IJ-Pl 


(«1 

Oalnl 
Code 
(A-HI 


(SI 


NOME (No reportable 




















71 Well* Fargo k Co (J> 


» 


Dividend 


J 


T 


inherit 


06/01 


K 






74 Xerox Corp. (J) 


k. 


Dividend 


J 


T 


Inherit 


06/01 


J 






75 Schwab US Treaaury MonWct . (J) 




Intereat 


J 


T 


buy 


12/27 


L 






7S US T-Noce S.825% 8/97 (Jl (J) 


K 


Interest 


J 


T 


buy 


08/n 


K 






77 US T-Hoce «.«2S% S/95 (J) 


» 


Interest 


J 


T 


matured 


OS/IS 


J 


A 




78 OS T-Moce 1.5* l2/9« (J) 


* 


Interest 


J 


T 


buy 


06/30 


K 






79 SaathJCIlne Seechan Corp. 





Dividend 


« 


T 


Trust 










•0 Atlantic Energy 


* 


Dividend 


^ 


T 


Truat 










tl Oresaer Indujcriea 


A 


Dividend 


J 


T 


Trust 










82 E.I. du Pone de Nemouri 


A 


Dividend 


K 


T 


Trust 










81 Allergan, Inc 


A 


Dividend 


K 


T 


Trust 










84 Tremont Corp. 


* 


Dividend 


a 


T 


Trust 












A 


Dividend 


J 


T 


Trust 










86 Mobil Corp. 


A 


Dividend 


K 


T 


Trust 












C 


Dividend 


l. 


T 


Trust 










•a ML Induscrlas 


" 


Dividend 


J 


T 


Trust 












A 


Dividend 


. 


T 


Truat 










•JO 




















' !sr?i?-Si'^r's:i i:][ariJ2^..,.. ^n^^iii^t^ii^o.. ^^i^J^^';Uo.o ^^^^i^ ]\^iX.u,. 


' TlircSr?! . o„ i:i\Ur..''L^r.'.o.n.o ^]^,^ii^to'Vl:^...o !c:ia;,^2iaS^I'3:!o"3;!o '-™ " ""■"- 


' v^rcTr.'i,''-'- 3:i;s;ri2^i, i:^^i-^ — -'" s:S""r?Sd — ./«..r... 



71 



FINANCIAL DISCLOSURE REPORT 



RENDELL, MARJORIE O. 



05/13/96 
(nju. 0/H/ 9 t 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. nm.Lc«. p.rt o( R.porc i 

r. All duties as Co-Executor oE Che Eacace oE Emma RendeLL (mv late 

mother-in-law) listed in the 1994 Report have been discharged. Due to the 

death oE mv Eather in January 1996, duties as Co-Trustee u/w of Mary B. 

Osterlund have been discharged as well. . 

IV. REIMBURSEMENTS AND GIFTS: All gifts received bv virtue of husband's 

position as Mayor of the City of Philadelphia. The trip to Dallas (line 3) 

was due to Philadelphia's being site of 1996 All-Star Game. Hall of Fame 

(line 4) was due to two Philadelphia Phillies inductees. The trio in February 
1995 (lines 5 & 6) was a three-day trio to Florida. As wife of the Mayor. I 
accompany my soouse to ceremonial and other gala events at which meals may be 
served and/or which include entertainment. The value of the dinners, event 
tickets, etc. attributable to my attendance at those events listed in Section 
IV hereof may exceed $250. As to spouse, see attached page from his ethics 
report as Mayor (Exhibit A-2 to Statement of Financial Interest filed with The 
State Ethics Commission of the Commonwealth of Pennsylvania) . I believe all 

jifts are exempt due to provisions of Reas. of Judicial Conference section 

5(b) . set forth at Appendix (iv) . 

r. OTHER GIFTS: (1) As wife of the Mayor. I had the use of ticltets for 

;eating in the Mayor's Box for sports events. 

2) It is my practice, and that of mv spouse, not to accept honoraria Eor 

:peaking or Eor performing wedding ceremonies. 

3) In attending or speaking at functions as wiEe oE the Mayor. I have 

ccasionallv received token gifts, such as a plaaue or vase; I belie v? ^-hat 



72 



FINANCIAL DISCLOSURE REPORT 



N.tm« of Person dflporclnq 

RENDELL, MARJORIE O. 



OAta oC Raport 

05/13/96 
(c o m B/lH/Bt 



Vm. ADDITIONAL INFORMATION or EXPLANATIONS. (tndic.t. p.« ». R.port , 

the value o£ any such ai£t3 was wsll under SIOO. Ag to sPouse. see attachet^ 
□age from his ethics report as Maypr. 

VII. INVESTMENTS AND TRUSTS: Please note that last year's report reflected 
entries for Schwab at lines Nos . I and 2: these were duplicate entries and ar? 
combined on this report as No . 1. 

Item 9 reflects a partial sale, items 28-30 a partial return of principal. 

Items Nos. 23. 24. 26. 27. 31. 32 and 34 reflect certain 1994 transactions 
which were inadvertently omitted from mv 1994 report. 

Items Nos. 85 through 95 are listed pursuant to the instruction on page 40 

that if as Co-Trustee I had control over the disposition of the asset, it 

should be reported: I. together with mv father, had such control over these 
assets that were in the T/U/W of mv mother, Mary B. Osterlund. 



I. POSITIONS (Cont'd.) 

POSITION NAME OF ORGANIZATION/ENTITY 

-o-Exec. (all duties discharged Est, of E.Rendell(mother-in-law) (since 3/15/95) 
Member. Board of Overseers Coll. of Arts&Sciences-Univ. Penn (since 4/27/95) 
rrustee Bd. of Trustees. Univ. of Pa. (since 1/1/95) 



73 



FINANCIAL DISCLOSURE REPORT 



H^ata o( Ptraon Rflporcln<j 

RENDELL, MARJORIE O. 



OMta o( Rttport 

05/13/96 



(i«v. a/iii/ye 



IX. CERTIFICATION. 



In compliance wich Che provisions of 28 U.S.C. 455 and of Advisory Opinior 
No. 57 of Che Advisory Commiccee on Judicial AcCivicies, and Co Che besc of my 
knowledge ac Che Cime afcer reasonable inquiry, I did noc perform any 
adjudicacory funccion in any licigacion during Che period covered by Chis repc 
in which I, my spouse, or my minor or dependenc children had a financial 
inceresc, as defined in Canon 3C(3)(c), in Che ouCcome of such licigacion. 

I cercify chac all Che informacion given above (including informacion 
perCaining Co my spouse and minor or dependenc children, if any) is accuraCe, 
Crue, and complece Co Che besc of my knowledge and belief, and Chac any 
informacion noc reporced was wichheld because ic meC applicable scacucory 
provisions permiccing non-disclosure. 

I furcher cercify Chac earned income from ouCside employmenc and honoraria 
and Che accepcance of gifcs which have been reporCed are in compliance wich Ch 
provisions of 5 U.S.pi^ app- 7, seccion 501 ec. seq., 5 U.S.C. 7353 and Judicia 
Conference regulacic 



SignaCure 




Dace a■lrJng^ Mi, IQQfi 



NOTE: ANY INDIVIDUAL M^JQ/ KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE 
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. S, 
SECTION 104) . 



FILING INSTRUCTIONS: 

Mail signed original and 3 additional copies to: 

Committee on Financial Disclosure 

Administrative Office of the United States Courts 

One Columbus Circle, N.E. 

Suite 2-301 

Washington, D.C. 20544 



74 

FINANCIAL DISCLOSURE REPORT 

NOMINATION 



Report Required by the tthica 
Refers Act ot 1989. Pub. L 
101-194. Hovenber }0, lie 

(S U.S.C. App. t, 101-1131 



1. Pereon Reporting (Leat lune. flrat. alddie Initial) 

RENDELL, MARJORIE 0. 


3. Court or Organisation 

U.S.D.C. (E.D. Pa.) 


3 . Date of Report 

01/07/97 


«. Title (Article III judqea Indicate active or 

aenlor atatua; Naglatrate judgea Indicate 
full- or part-tlaa) ^ 

DISTRICT COURT JUDGE (ACTIVE) 


S. Report Type (check appropriate type) 
X Moalnetion. Data 01/07/97 
Initial Annual Pinal 


C. Reporting Period 
01/01/0« - 13/I6/9C 


7. Oiaiiibera or Office Addreaa 

UNITED STATES DISTRICT COURT 
601 MARKET STREET, ROOM 3H4 
PHILADELPHIA, PA 19106 


8. On Che baaia of the in£or«ation contained in thla Report and 
any aodificationa pertaining thereto, ic ia. in ay opinion, 
in coMpliance with applicable law* and regulatlone. 

Raviawing Officer Date 


IHPORTAirr HOTBSi The InatrucUona accoeqianylng chla fona auat be follomd. Qxmlete aU part*, 
checking the MOMB box for each aectlon where you have no reportable Information. Sign on laat page. 



I. POSITIONS. (Reporting individual only; aee pp. 9-13 of Xnatructlona. ) 

PQglTIQN NAME OF ORGANIZATION /ENTITY 

NONE (Ho reportable poaltlonal 



Director and Vice-Chair 



Avenue of the Arts. Inc. 



Member. Board of Overseera College of Arts&Sciences-Univ. of Pennsylvania 

Trustee Board of Trustees. University of Pennsylvania 



U. AGREENlENTS* (Reporting Individual only; aea pp. 14-17 of Xnatructlona.) 

DATE PARTIES AND TERMS 

I I NONE (No reportable agreenenta) 



HI. NON-INVESTMENT INCOME. (Reporting Individual and apouae; aee pp. 11-35 of Inatructlona. 

DATE SOURCE AND TYPE 

NONE (No reportable non-lnveatment Income) 



□ 



1996 City of Philadelphia (spouse salary - amount n/a) $ JLj 

$ 

$ 

$ 

$ 



75 



FINANCIAL DISCLOSORE REPORT 



Name of Person Reporting 

RENDELL, MARJORIE O. 



Date of Report 

01/07/97 



IV. REIMBURSEMENTS and GIFTS tran,port.tlon. lodging, food, ,ncert.ln™.nt 

( Includes those to spouse and dependent children; use the parencheClcals "(S)" and •(DC)" to indicace reporCabl 
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 36-29 of Instruction 

SOURCE DESCRIPTION 

f NONE 



(No 8uch reportable reifflbursenenta 



glfta 



EXEMPT 



n 



OTBKR Gil? is. ■.(Includes those to spouse and dependent children: use the parentheticals " (SI " and '(DC)' to 

indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of XnstrucCions 

SOURCE 
NONE 



DESCRIPTION 



VALI 



(Ho such reportable gifts) 



VI. 



n 



LiIaoJULII ]Jco> (Includes those of spouse and dependent children; indicate where applicable, person responsible 

for liability by using the parenthetical " (S) " for separate liability of the spouse, " (J» • for joint liability of 
reporting individual and spouse, and " (DCl ' for liability of a dependent child. See pp. 34-3$ of Instructions.) 

CREDITOR DESCRIPTION VALUE COl 



NONE 



(No reportable liabilities) 



United Savinaa Bank 



1/2 mortgage on vacation duplex 
(one rental prop.: one personal use 



VALOE CODBS 



I J • SIS.OSO or Isea It • SIS. 001 - $SO,000 
If • 9}S0,001 - $500,000 • iSOO.OOl - $1,000,0 



L • $90,001 • SlCrO.OOO 
P - More than SI. 000. 000 



H • $100,001 



76 



FINANCIAL DISCLOSURE REPORT 



HAme of Paraon Reporting 

RENDELL, MARJORIE O. 



Data oC Raporc 
01/07/97 



VU. Page 1 I^fVESTMENTS and TRUSTS mco 

and (topendttnc children- See pp. 37-S4 oC In 



alue. 



ions (Includes those of spouse 



A. 
Description of Aasttts 
(InoludlnQ crust asaats) 

Indicate where applicable, owner of 
the asset by using the parenthetical 
'(J)* Cor lolnc ownership of report- 
ing Indlvldusl and apouse. *{S}* for 
separate ownership by spouse, ■ (DCJ ■ 
for ownership by Sependent child. 

PUce •<X)- after each asset 
exeopt frooi prior disclosure. 


Incooe 
during 
reporting 
period 


C. 
arose value 
at end of 


D. 
Transactions during reporting period 


(11 

SSL' 

(A-HI 


(21 
Type 

i!v^- 


(11 

Value2 
Code 
(J-PI 


(2) 

Value 
Method} 
Code 

(Q-m 


111 

buy; sail, 
■srgec, 
redenp- 
tionl 


tt not axe^t (torn disclosure 


Month. 
Day 


13) 

Value2 
Code 
(J-PI 


(41 

Oalnl 
Code 
(A-HI 


(5) 
Identity of 

transaction) 


NONE (No reportable 

Incooe, assets, or 
transactiona) 




















I Schwab Money Market Fund (IRA 
rolloverl 


B 


Dividend 




T 












3 Vanguard P/I Short Ten Corp. 
(IRA rollover) 


C 


Dividend 




T 












} Brandywlne (IRA rolloverl 


C 


Dividend 




T 












4 Oakmark Fund (IKA rolloverl 


C 


Dividend 




T 












5 Kauffman Fund (IRA rolloverl 


* 


Dividend 




T 












< Scudder Global Fund (IRA 
rolloverl 


» 


Dividend 




T 












7 20ch Century Int'l (IRA 
Rolloverl 


A 


Dividend 




T 












• Federated 2-S yr. Oovt. (IRA 
R/OI 


B 


Dividend 




T 












» Cowen Opportunity (IRA R/OI 


B 


Dividend 




T 












10 Dodge 4 Cox atock (IRA R/OI 


A 


Dividend 




T 












11 Dreyfus S.I. Oovt. (IRA R/OI 


C 


Dividend 




T 












U PAH Value (IRA R/OI 


» 


Dividend 




T 












13 Janus Fund (IRA R/OI 


* 


Dividend 




T 












1« PA. Mutual (IRA R/OI 


c 


Dividend 




T 












IS HAS BquitydRA R/OI 


D 


Dividend 




T 












16 SoGen International (IRA R/OI 


A 


Dividend 




T 












17 Schwab Honey Mkt (IRA contrtbl 


A 


Dividend 




T 












18 Kaufmann (IRA concribi 


A 


Dividend 


^ 


T 












1 Incooe/Oain Codes: A-S1,000 or less 8-Sl,001 to )3,S00 C-S},S01 to SS.OOO O-tS.OOl to $15,000 

(See Col Bl k D<l E-$15,001 to SSO,000 F-is6,001 Co $100,000 O-ll00,001 Co $1,000,000 H-Hore Chan $1,000,000 


2 Value Codaa. J-SIS.OOO or leea K.SIS.OOI Co S50.000 L.S50,001 Co SIOO.OOO M.$100,001 Co $250,000 
(See Col. CI t 031 1I-S2S6,001 CO $500,000 0-SSo6,001 to $1,000,000 P>Hore than $1,000,000 


1 Value Method Codsei O-Apprslsal R>Casc(rssl estate onlyl S-Assesoent T-Cash/Harksc 
(See Col. ai B-Book Value V>0ther H.Bstiisated 



77 



FINANCIAL DISCLOSURE REPORT 



Name of Person Reporting 

RENDELL, MARJORIE O. 



3ate of Report 

01/07/97 



VII. Page 2 I>fVESTMENTS and TRUSTS 

and dependent children. See pp 37-S< 



(Includes those of apouae 



Oeacrlptlon of Aaseta 
(including truat aaaeca) 

Indicate where applicable, owner of 
the aiaet by uaing Che parenthetical 
•(J)" for lolnc ownerahlp of report- 
ing individual and apouae, '(S)* for 
aeparace ownerahip by apouae, • (DC) ■ 
for ownership by dependent child. 

Place '(X)* after each asaet 
exeunt from prior diaclosure. 


during 
reporting 
period 


C. 

Groaa value 

at end of 

reporting 

period 


Tranaactiona during reporting period 


(11 

«inc.l 
Code 
lA-Hl 


€-or 


(11 

Value: 
Code 

IJ-Pl 


(21 

Value 
Method] 
Code 
(Q-Wl 


(1) 
Type 
(e.g. , 
buy; aell, 
merger. 

"ion? 


tf not exempt from diacloaure 


(2) 

Date: 
Month 
Day 


(3) 

Value2 
Code 
(J-PI 


(41 

Gainl 
Code 
(A- HI 


(51 

Identity of 

buyer/aeller 

(If private 

tranaactionl 


NONE (No reportable 

income, asaets, or 
transact iona) 




















19 SoG«n Int'l (IRA contrib) 


A 


Dividend 


J 


T 












20 Schwab Money Market (IRA R/01 


* 


Dividend 


J 


T 












21 SoGen Int'l (IRA R/0) (S) 


A 


Dividend 


J 


T 












22 Schwab Honey Market (IRA 
contrib) (Si 


* 


Dividend 


J 


T 












23 Hilliam Blair Growth (IRA 
contrib) (S) 


» 


Dividend 


K 


T 












24 ATtT (J) 


A 


Dividend 


^ 


T 












25 Abbott Laboratories (J) 


A 


Dividend 


J 


T 












26 Allergan (J) 


A 


Dividend 


- 


T 












27 Atlantic Energy (J) 


A 


Dividend 


J 


T 












» «i».i= «ic«i,M ,a, 


B 


Dividend 


L 


T 














A 


Dividend 


J 


T 












30 Coc« Col« (J) 


* 


Dividend 


^ 


T 












31 Disbold Inc. (Jl 


A 


Dividend 


J 


T 












32 Oreaaer Induacrles (J) 


A 


Dividend 


J 


T 












33 DuPont E I DeNemouT IJl 


A 


Dividend 


L 


T 














A 


Dividend 


^ 


T 














A 


Dividend 


J 


T 












36 Federal N»fl Mortgage *»aoc 


A 


Dividend 


K 


T 












1 Incooie/Oaln Codee : ^-Sl.OOO or leea B-Sl.OOl Co S2,500 C-SZ.SOl Co SS.OOO D-55.001 to 315,000 

(See col, Bl i Ml E.|l4.001 to SiO.OOO P-lsO. 001 to SlOO, 000 G-llio. 001 to h, 000, 000 H-Hor. than ll, 6oO, 000 


2 Value Codes, J-SIS.OOO or leaa K.S15,001 to S50.000 L.S50,001 to S100,000 M-SlOCOOl to S250,000 
(Sa. col, CI 4 D3I N.|2S6,001 to $500,000 O-lsOO.OOl to 31.000.000 P-More than SI, 000. 000 


3 Value Kethod Codoa. Q.»ppralaal R-Coac(real eatate onlyl S-Asaeament T-Caeh/Market 
(See Col C3) a.SSSx Value v-other H-Batlmated 



78 



FIHAMCXAL DISCLOSURE REPORT 



Name o£ Person Reporting 

RENDELL, MARJORIE O. 



Date of Report 



VII. Page 3 INVESTMENTS and TRUSTS -- income. 

and dependent children. See pp. 37-54 of Instn 



A. 
Deacrlption of Assets 
(including trust assets) 

Indicate where appllcabla. owner of 
the asset by using the parenthetical 
•(J)" for loint ownership of report- 
ing individual and apouae, "(S)* for 
separate ownership by apouae, "(DC)' 
for ownership by dependent child. 

Place -(X)' after each asset 
exempt from prior disclosure - 


Income 
during 
reporting 
period 


C. 

Gross value 

at end of 

reporting 

period 


D. 
Transactions during reporting period 


(1) 

Code 
(A-HI 


(2) 
Type 

t'ent or 
Inc.l 


(11 

Value2 
Code 
(J-Pl 


(21 

Value 
MethodJ 
Code 
(Q-W) 


Typ^'' 

(e.g. . 

buy, sell, 
merger, 
red amp- 


If not exempt from disclosure 


(2) 

Month- 
Day 


(3) 

Value2 
Code 
(J-PI 


(41 

Oainl 
Code 
(A-H) 


(SI 

Identity of 

buyer/seller 

(If private 

transaction) 


KONE (Ho reportable 




















37 (Sannett (J) 


* 


Dividend 


J 


T 












3B General Electric IJ) 


* 


Dividend 


K 


T 












39 Gillette Co. (J) 


A 


Dividend 


« 


T 












40 Household International (J) 


A 


Dividend 


J 


T 












41 Loews International (J) 


» 


Dividend 


K 


T 












42 Lucent Technologies (Jl 


A 


Dividend 


J 


^ 












43 McDonalds Corp. (J) 


* 


Dividend 


- 


T 












44 Mobil (J) 


A 


Dividend 


« 


T 












45 Motorola Inc. (J) 


A 


Dividend 


J 


T 












4fi NL Industries (J) 


A 


Dividend 


J 


T 












47 Pepsico Inc. {J) 


A 


Dividend 


J 


T 












46 Public Service Enterprise Grp. 


A 


Dividend 


^ 


T 












49 SmithKllne Beecham ADR (J) 


A 


Dividend 


" 


T 












50 Sprint Corporation (J) 


A 


Dividend 


K 


T 












51 3£0 Cotnnunicationa Co. (J) 


A 


Dividend 


J 


T 












52 Tremonc Corp. (J) 


A 


Dividend 


^ 


T 












S3 Vulcan Materials (J) 


A 


Dividend 


J 


T 












54 Wal-Mart Stores, Inc. (Jl 


A 


Dividend 


^ 


T 












' iSSrsif^g.^fSJi S:|h°Sg.°L^I?5.oco l:y6°§5i^?o'ii!?%oo l-.\\-.f.lo\\l\VU...o l:l&:l''\^%\\Ml%oo 


' ^lircSr'?i . 03, 2:|H6?SSx'Eo^llSo,ooo S:|l^6»§ii^?„'l?:§§S,ooo^:Si;;°?LS°.!!2S6"22o "-'-."o-o «so.ooo 


' 'fsircSt'-g.^-^-^ 8:jggE'i:!i. ;:g?Ki-^ """ """" S:j;?j:^s5 T.c«./H.r..t 



79 



FINANCIAL DISCLOSURE REPORT 



Name of Parson Reporting 

RENDELL, MARJORIE O. 



Date of Report 

01/07/97 



VII. Page 4 INVESTMENTS and TRUSTS ■- i„co 

and dependent children. See pp. 37-54 uC In 



lona (Includes those of spouse 



A. 

Description of Assets 
(Including trust assets) 

Indicate whore applicable, owner of 
the asset by using the parenthetical 
"(J)" Cor lolnt ownership of report- 
ing Individual and spouse, *(S]^ for 
separate ownership by spouse, "(DC)" 
for ownership by dependent child. 

Place -(X)- after each asset 

exein)t from prior disclosure. 


B. 
Income 
during 
reporting 
period 


C. 

Gross value 

at end of 

reporting 

period 


D. 
Transactions during reporting period 


Amt.l 
Code 
(A-H) 


Type 


111 

Value2 
Code 
(J-Pl 


(21 

value 
Method] 
Code 

lo-m 


111 
Type 
le g., 
buy; sell, 
merger, 
redemp- 
tlonT 


it not exeapt froa dlacloaure 


(21 

Date: 
Month- 
Day 


131 

Vmlue2 
Code 
IJ-PI 


141 

^^ 

(A-U) 


(5> 
Identity of 
buyer/seller 

(If private 
transaction) 


NONE (No reportable 
income, assets, or 




















S5 Wells Pargo & Co. (J) 


* 


Dividend 


K 


T 












Sfi Xerox Corp. (J) 


* 


Dividend 


« 


T 












S7 OS T-Note S.62S% 8/97 (J) 


A 


Interest 


- 


T 












58 OS T-Note 7.5* 12/98 (J) 


K 


Interest 


.< 


T 












59 Huni Inv Tr\ist Series 14 (J) 


A 


Dividend 


J 


T 












60 Muni Inv Trust Series 13 (J) 


* 


Dividend 


J 


T 












€1 Dreyfus Shcrt/Incerm Tax 
Exempt Bond Fund (J) 


C 


Dividend 


I 


T 












62 Schwab Tax Cxempt r*4 (J) 


C 


Dividend 


H 


T 








' 




6 3 Vangxiard Muni Short Tern Bond 
Fund (J) 


B 


Dividend 


^ 


T 












64 Allergan, Inc. (DC) 


A 


Dividend 


^ 


T 












65 Atlantic Energy (DC) 


* 


Dividend 


J 


T 












66 Atlantic Richfield (DC] 


* 


Dividend 


J 


T 












67 BeOanan Instruments (DC) 


* 


Dividend 


J 


T 












68 Dresser Industries (DC) 


A 


Dividend 


^ 


T 












69 DuPont <0C) 


A 


Dividend 


J 


T 












10 Huffy Corp. (DC) 


» 


Dividend 


J 


T 












71 Mobil (DC) 


A 


Dividend 


^ 


T 












72 NL Industries (DC) 


A 


Dividend 


J 


T 












1 Income/Gain Codes: A-Sl,000 or less B-fil,001 to 32,500 C-S2,S0l to $5,000 D>$S,001 to S15,000 

(See Col. 81 & D4) B-$1S,0QI to $50,000 P«$50,001 to $100,000 G-$I0O.00I to $1,000,000 H**tor« than 91,000,000 


2 Value Codas: J-SlS.OOO or leas K-SIS,001 to 550,000 L-S50,00l to $100,000 M-$100,001 Co 5250.000 
(See Col. CI fc D3) N-S2S6,001 to 5500,000 O-S500,00l to $1,000,000 P-More thin Sl,0o6,000 


3 Value Method Codes; Q-Appralsal R«Cost(resl estate only) S-Assasment T«C«sh/Karkat 
(See Col. C3] U-Book Value v.othar W-Bseimaced 



80 



FIHANCIAI. DISCLOSURE REPORT 



HaiDtt of Person Reporting 

RENDELL, MARJORIE O. 



[late of Report 

01/07/97 



VII. Page 5 INVESTMENTS and TRUSTS ■ i„co«.. v.i 

and dependent children. See pp. 37-54 of Inatructl 



(Includes those of spouse 



Description of Assets 
(including trust Assets) 

Indlcace where applicable, owner of 
the asset by using the parenthetic*! 
•(J)" for loinc ownership of report- 
ing individual and spouse, "(S)* for 
separate ownership by spouse, * (DC) " 
Cor ownership by dependent child . 

Place "(Z)" after each asset 

exeeipt froa prior disclosure. 


B. 
Incoeie 
durlna 
reporting 
period 


C. 

Oroaa value 

at end at 

reporting 

period 


D. 
Tranaactiona during reporting period 


<ll 

»mt.l 
Code 
(A-HI 


111 
, Type 

^Ht'or 
Int.l 


(11 
(J-PI 


(2) 

Value 
Methods 
Code 
(Q-HI 


Type 

(e.g. , 
buy: aell. 
merger. 


If not exempt from disclosure 


Month- 
Day 


131 

Value2 
Code 
(J-PI 


(«l 

Gainl 
Code 
(A-HI 


(5> 

Identity of 

buyer/aeller 

(If private 

transaction} 


NONE (No reportable 

income, assets, or 
transactions) 




















73 SmithKline Beecham ADR (DC) 


* 


Dividend 


« 


T 












74 Toys R Us (DC) 




Dividend 


J 


T 












75 Ctf Accrl Trsy Srm Ot 11/98 
(DC) 


» 


Intereat 


J 


T 












7« Schwab Honey siarkt PD (DC) 


A 


Dividend 


K 


T 












" 




















7« 




















7» 




















•0 




















• 1 




















• 3 


















1 
1 


e] 




















•4 




















as 




















•c 




















• 7 




















•a 




















•> 




















90 




















1 IncoM/Oaln Oodaa: A-Sl.OOO or Usa B-Sl.OOl to 5J.500 CSJ.SOl to S5.000 o-»S.0Ol to SIS.OOO 

ISM Col. Bl t Ml g-JlS.OOl to SSO.OOO P-lsO.OOl to $100,000 O-SIOO.OOI to SI. 000. 000 H-Mor« than }1, 000,000 


] Value Codea: J.StS.OOO or leaa IC.SIS.OOI to SSO.OOO L-SSO.OOl to $100,000 M-JlOO.OOl to S3S0.000 
(Sae Col. CI 4 031 K-SJSO.OOl to 3500,000 0-3So6.00l to SI. 000. 000 P-Moro thin SI. 000. 000 


) Value Method Codea 1 O-Appralaal R-Coat (real aetata onlyl S-Aaaeeieent fCaah/Herket 
(See Col. C3I O-Book Value v.other K-Betlmated 



81 



FINANCIAL DISCLOSURE REPORT 



Name of P«raon Reporting 

RENDELL, MARJORIE O. 



Date of Report 

01/07/97 



Vni. ADDITIONAL INFORMATION or EXPLANATIONS. (moict. p.r<: ot ».port i 
NOTE: INFORMATION PROVIDED IN SECTION VII IS AS OF 12/18/96. 



82 



FINANCIAL DISCLOSURE REPORT 



ttane of Pttraon Reporting 

RENDELL, MARJORIE O. 



D«c« of Report 

01/07/97 



K. CERTIFICATION. 



In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion 
No. 57 of the Advisory Committee on Judicial Activities, and to the best of my 
knowledge at the time after reasonable inquiry, I did not perform any 
adjudicatory function in any litigation during the period covered by this repc 
in which I, my spouse, or my minor or dependent children had a financial 
interest, as defined in Canon 3C(3) (c) , m the outcome of such litigation. 

I certify that all the information given above (including information 
pertaining to my spouse and minor or dependent children, if any) is accurate, 
true, and complete to the best of my knowledge and belief, amd that any 
information not reported was withheld because it met applicable statutory 
provisions permitting non-disclosure. 

I further certify that earned income from outside employment emd honoraria 
and the acceptance of gifts which have been reported are in compliance with th 
provisions of 5 U.S.C^-app. 7, section 501 et. seq., 5 U.S.C. 7353 and Judicia 
Conference regulations. 



Signature 



NOTE: ANY INDIVIDUAL 
THIS REPORT MAY BE SUBJE 
SECTION 104) . 




0(g_>^^ 



'nn-i 



OWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE 
O CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. 6, 



PILING INSTRUCTIONS: 

Mail signed original and 3 additional copies to: 

Committee on Financial Disclosiure 

Administrative Office of the United States Courts 

Onoe Columbus Circle, N.E. 

Suite 2-301 

Washington, D.C. 20544 



MARJORIE O. RENDELL 



83 



NHT WORTH (as of December 18,1996) 



Provide a complete, current rinwicioJ net aonh suiement which itemizes in detji] 
ill iiseii (Iflcludiflg binJc accounis, real esuic, jecuriDcs, crusu, invesanenti. ind other fLninciii 
holdings) iU liabilides (including debts, mortgiges, loins, tnd other nninciil obligadons) of 
yourseU', your spouse, and other imrnediaie memben of your household. 



1 ASSETS 


LuaaxrtEs j 


1 Cuh 00 Nmd uid in b>nb 


3 


300 




NaU4 p4y»blc u b4Aki-««air«d 




! 1 


U.S. Co<tusffl<oi Mcuriaei->^ 
Khaduli 








No(£i p«>-kbk to b4Al:j-uiVi«cvffcd 








Uiud .ceanoci-«<U wioduU (attached) 


1,681 


705 


** 


Noui ptytbic u reluiva 








Unluu^ luiniics-tiid icAeduU 








Noiu piyihlc to od«n 








Accocj^u md no'xt nt£<iviblc: 








.\ccounu uid bilU due (misc) 


2 


000 




Du< tnm rUuv« iM frScndi 


10, 


XX) 




Unpaid income lu 








D««fainm*«Bi father's estate 


5, 


300 




Olbcr unp4id lu and inicrut 








Doub<Ail 








Rul uuu nonfifei pijribU-idd 
'<*>«"«1« attached 


278 


000 




RuJ utait oim«d-.rl4 •<*«^*Attached 


605, 


XX) 




Quad awnmes ind other lieni pty- 








XttJ nuu moil|itei rauivibU 








Micr debu-ituniu: 








AaM and e6cr penoul prapeny 


50, 


XX) 












Cub vtluc-Uft ifuuruice 
















Ovhe uica-iu3iizt; 
















Money market - Schwab* 


244, 


)42 






. 






























Tool liibOidet 


280, 


000 




- 








Net Worth : 


,320, 


047 




TeUl AjwU 


2.600. 


147 




Totil Uibilitiw ind net wonb ; 


,600, 


047 




CONTP.CE.ST U.^IUnES 








GENERAL D.t6rMATI0N 








Aj cadorscr, oooulicr or |ui.iiiior 


none 






An any uku pledfed? (Add Khcd- 
aJe.) no 








Oa ku4i or eonneo 


none 






An yvu defcsdant B any loiti or le|aj 
aclaoalT no 








Lt(kl Gauiu 


none 






H«»e ynu jvct taluo bintov;«ry? no 








Pro«iiion Tm FadcrtJ lftco(n< Tu 


none 












1 


Oihc; ipecitJ 4<b< 


none 












____ 



Inoludaa : 

$187,952 

34,617 

21,835 

118 

$244,542 



- joint account 

- IRA pension (M.O. Randall) 

- cuatodlan (for J.T. Randall) 

- IRA (B.a. Randall) 



Includes all 
securities 
In IRAs and 
pension funds 



84 

/ 



^^<^-c.J>-(-( >f?A:. ^0 



1973. Ma villxam tbfriR oaotrTH.SHS 

Ua.TlS COCEN INTERMATXOfML EMNO 



14.9000 
37. MOO 



„,.*03.44 

I16.00#-«0 



(III', VocU'.J^ y .k^^ ' C^Jl'.^l 



i 

46a 
8o28 



ALLEROAN Xl 
■ 4TIC E 

STIC - 



ERGV INC 

BECkMAN XH^ThS - 



LERa 
J&. -, 

Rl INDUSTRIE: 

SMITMkLTNE BCl 

1 AM REP 5 CL A 

INT 11.75X14 





cis.Bti.r 

11. 141. 1 



85 



Marjorie O. Rendell 



SCHEDULE ■? - pp ^y 



Property 



3425 Warden Drive 
Philadelphia, PA 



5032-34 Asbury Avenue 
Ocean City, NJ 



61^35. QUO 
11370. OtiO 



Mortgage 
$ 130,000 

$ 148,000 



Both mortgages held by: 

United Savings Bank 
P. O. Box 25087 
Philadelphia, PA 19147 



A'^.Qf^A oe A 



86 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any fonner names used.) 

Bruce William Kauffman 

2. Address: List current olace of residence and offlce address(es). 



Office Address : 

Dilworth, Paxson, Kalish 

& Kauf&nan LLP 
3200 Mellon Bank Center 
1735 Market Street 
Philadelphia, Pennsylvania 19103 

3. Date and place of birth. 

December 1, 1934 
Atlantic City, New Jersey 

4. Marital Status (include maiden name of wife, or husband's name). List 
spouse's occupation, employer's name and business address(es). 

I am married to Carol Jackson Kauffman. 

Occupation: Marketing 

Employer: Lawyers' Travel Service 
4000 Beli Atlantic Tower 
1717 Arch Street 
Philadelphia, Pennsylvania 19103 

5. Education : List each college and law school you have attended, including 
dates of attendance, degrees received, and dates degrees were granted. 



Yale Law School 

Degree Awarded: LL.B (1959) 

Dates Attended: Sept., 1956 - May, 1959 



87 



University of Pennsylvania 

Degree Awarded; Bachelor of Arts (1956) 

Dates Attended: Sept.. 1953 -- June, 1956 

Duke University: Sept., 1952 -- June, 1953 

EiiiDlo>TneDt Record : List (by year) all business or professioDal 
corporations, companies, firms, or other enterprises, partnerships, 
institutions and organizations, nonprofit or otherwise, including firms, 
with which you were connected as an officer, director, partner, proprietor, 
or employee since graduation from college. 

1982 - present: Chairman -- Dil worth. Paxson. Kalish & Kaufftnan LLP 

1965 - 1980 Partner - Dilworth, Paxson, Kalish & Kauffman 

1960 -- 1965 Associate - Dilworth, Paxson, Kalish & Kauffman 

1995 -- present: Adjunct Professor ~ University of Pennsylvania 

School of Law 

1995 - present: USABancShares, Inc. - Chairman, Board of Directors 

1980 - 1982: Justice of the Supreme Court of Pennsylvania 

1959 -- 1960: Clerk to the Honorable Vincent S. Haneman of the 

Superior Court of New Jersey, Appellate Division 

1956 - 1958: City of Ventnor. New Jersey - Lifeguard 

Military Service : Have you had any military service? If so give particulars, 
including the dates, branch of service, rank or rate, serial number and 
type of discharge received. 

No. 

Honors and Awards : List any scholarships, fellowships, honorary degrees, 
and honorary society memberships that you believe would be of interest to 
the Committee. 

University of Pennsylvania -• Phi Beta Kappa (1955) 
Yale Law School -- Order of the Coif (1959) 
Jewish National Fund Tree of Life Award (1996) 
Community Legal Services Champion Award (1995) 
Philadelphia Police "Assist Officer Award" (1989) 



88 



Judge Learned Hand Human Relations Award (1988) 
Anti-Defamation League Torch of Libert>' Award (1983) 

Bar Associations : List all bar associations, legal or judicial-related 
committees or conferences of which you are or have been a member and 
give the titles and dates of any offices which you have held in such groups. 

Member. American Law Insiitute 

Fellow, American College of Trial Lawyers (1975- ) (Chairman 
of Subcommittee of the Federal Judiciary Committee on Judicial 
Compensation) (1994- ) 

Fellow, International Academy of Trial Lawyers 

Fellow, American Bar Foundation 

Fellow, Pennsylvania Bar Foundation 

American Bar Association 

Pennsylvania Bar Association 

Member - House of Delegates (1987) 

Philadelphia Bar Association 

Philadelphia Bar Foundation. President (1982 - 1984) 

Committee of Censors — United States District Court for the 
Eastern District of Pennsylvania, (1976 - 1980) 

Pennsylvania Judicial Inquiry 

and Review Board (1984 - 1988), Chairman (1988) 

Pennsylvania Bar Association Judicial 

Selection Reform Committee (1983 - 1984) 

The Juristic Society 

The Federalist Society (1989 - 1992) 

The American Judicature Society 

Lawyers' Club 



89 



10. Other Memberships : List all organizations to which you belong that are 
active in lobbying before public bodies. Please list all other organizations 
to which you belong. 

I belong to the following organizations, none of which, to my knowledge, 
engage in lobbying before public bodies: 

Yale Law School Association. Vice President (1984 -- 1986) 

Yale Law School Association of the 

Philadelphia Area, Past President (1965 -- 1966) 

The Yale Club (1959- ) 

Navy League of the United States, Life Member (1986) 

The Pennsylvama Society (1970- ) 

Fellow, Phi Beta Kappa Associates (1978- ) 

Phi Beta Kappa Association of the Delaware Valley 

Supreme Court Historical Society 

The Union League of Philadelphia (1979- ) 

United States Coast Guard Auxiliary (Retired Status) 

Overbrook Italian-American Club (1975- ) 

Atlantic City Country Club (1991- ) 

Vesper Club (1984- ) 

11. Court Admission : List all courts in which you have be«n admitted to 
practice, with dates of admission and lapses if any such memberships 
lapsed. Please explain the reason for any lapse of membership. Give the 
same information for administrative bodies which require special admission 
to practice. 

Supreme Court of the United States (1965) 

United States Courts of Appeals: 

United States Court of Appeals for the District 
of Columbia Circuit (1988) 

United States Court of Appeals for the First Circuit (1973) 

United States Court of Appeals for the Third Circuit (1961) 

United States Court of Appeals for the Fourth Circuit (1977) 

4 



90 



United States Court of Appeals for the Fifth Circuit (1983) 
United States Court of Appeals for the Eighth Circuit (1989) 
United States Court of Appeals for the Ninth Circuit (1970) 

United States District Courts: 

United States District Court for the Eastern 
District of Pennsylvania (1960) 

United States District Court for the District of New Jersey (1960) 

United States District Court for the District 
of the District of Columbia (1988) 

State Courts: 

Supreme Court of the Commonwealth of Pennsylvania (1961) 

Supreme Court of the State of New Jersey (1960) 
Court of Appeals for the District of Columbia (1982) 

12. Published Writings : List the titles, publishers, and dates of books, articles, 
reports, or other published material you have written or edited. Please 
supply one copy of all published material not readily available to the 
Committee. Also, please supply a copy of all speeches by you on issues 
involving constitutional law or legal policy. If there were press reports 
about the speech, and they are readily available to you, please supply 
them. 

• Judicial Selection in Pennsylvania: A Proposal, 27 Villanova L. Rev. 
1163 (1982) (supporting merit selection of judges) 

• Civil RICO Litigation Involving Banks: The Developing Case Law, 9 
Delaware J of Corp. Law 1 (1984) 

• The Philadelphia Special Investigation Commission: Dissenting 
Statement of Commissioner Bruce W. Kauffman, 59 Temple L. 
Quarterly 411 (1986) 

• The Philadelphia Police Advisory Commission: Dissenting Statement of 
Commission Member Bruce W. Kauffman: In re Molses Dejesus 

• The National Law Journal, April 10, 1995, "A Conservative Plea to 
Save LSC 



91 



13. Health : What is the present state of your health? List the date of your last 
physical examination. 

My health is excellent. I received my most recent general physical examination 
in December, 1996. 

14. Judicial Office : State (chronologically) any judicial offices you have held, 
whether such position was elected or appointed, and a description of the 
jurisdiction of each such court. 

On February 26, 1980, I was appointed by Governor Dick Thornburg to fill an 
unexpired term as a Justice of the Supreme Court of Pennsylvania. Upon the 
expiration of my term in January, 1982, 1 chose not to run as a partisan 
political candidate. 

The Pennsylvania Supreme Court is the Commonwealth's highest appellate 
court, with plenary jurisdiction of all appeals from the Permsylvania Superior 
and Commonwealth Courts. 

15. Citations : If you are or have been a judge, provide: (1) citations for the ten 
most significant opinions you have written; (2) a short summary of and 
citations for all appellate opinions where your decisions were reversed or 
where your judgment was afTirmed with significant criticism of your 
substantive or procedural rulings; and (3) citations for significant opinions 
on federal or statf constitutional issues, together with the citation to 
appellate court rulings on such opinions. If any of the opinions listed were 
not officially reported, please provide copies of the opinions. 

1) Significant Opinions on Federal and State Constitutional Issues : 

• Commonwealth v. Hayes. 489 Pa. 419, .. 

414 A. 2d 318 (1980) (concurring opinion) '^ 

- Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (1981) 

- Commonwealth v. Wadzinski, 492 Pa. 35. 422 A. 2d 124 (1980) 



92 



.Commonwealth v. Virtu, 495 Pa 59, 432 A. 2d 198 (1981) 

• Commonwealth v. McElligott, 495 Pa. 75, 432 A. 2d 587 (1981) 

• Commonwealth v. Robinson, 497 Pa. 49, 

438 A, 2d 964 (1981) (dissenting opinion) 

- Commonwealth v. Scott. 496 Pa. 78, 436 A. 2d 161 (1981) 

. CommorM-ealth v. Stamps, 493 Pa. 530, 427 A. 2d 141 (1981) 

2) Reversals : 

None of my Pennsylvania Supreme Court opinions were reversed by the 
United States Supreme Court. 

3) Other Significant Opinions : 

- In re Albert Compolongo, 495 Pa. 627. 435 A. 2d 581 (1981) 

- Pennsyhania Industries for the Blind & Handicapped v. Larson, 
Secretary of Transportation. Comm , 496 Pa. 1, 436 A. 2d 122 (1981) 

16. Public Office : State (chronologically) any public offices you have held, 

other than judicial offices, including the terms of service and whether such 
positions were elected or appointed. State (chronologically) any 
unsuccessful candidacies for elective public office. 

In 1967 I was elected as a Delegate to the Pennsylvania Constitutional 
Convention, and scrsxd until the Convention concluded in 1968 In 1973 and 
1974 I served as an elected member and Chairman of the Montgomery County 
Government Study Commission In 1966 I ran unsuccessfully in the primary 
election for the Pennsylvania State Legislature. In 1978 I ran unsuccessfully in 
the primary election for the Pennsylvania Supreme Court. 

I have also served on the following public commissions and investigative 

bodies: 

• Member of the Philadelphia Police 

Advisory Commission (1994- ) 
(appointed by Mayor Edward Rendcll) 

' Co-Chairman of the Philadelphia 

Election Reform Task Force (1994- ) 
(appointed by Mayor Edward Rendcll) 



93 



- Chairman (1988), Pennsylvania Judicial Inquir>' and Review 

Board (1984 - 1988) 
(appointed by Governor Dick Thomburg) 

• Chairman of the Mayor's CommissioD on Minority 

Employment in the Philadelphia Police Department (1982) 
(appointed by Mayor William Green) 

• Member, Philadelphia Special Investigation 

Commission ("MOVE Commission") (1985 -- 1986) 
(appointed by Mayor Wilson Goode) 

. Chairman of Civil Service Commission, 

Lower Merion Township (1982 - 1988) 
(appointed by Commissioners of Lower Merion Township) 

17a. Legal Career : Describe chronologically your law practice and experience 
after graduation from law school including: 

1) whether you served as clerk to a judge, and if so, the name of the 
judge, the court, and the dates of the period you were a clerk; 

During 1959 and 1960, I clerked for the Honorable Vincent S. 
Haneman of the Superior Court of New Jersey, Appellate Division. 

2) whether you practiced alone, and if so, the addresses and dates; 

Since concluding my clerkship with Judge Haneman, my exclusive 
affiliation has been with the Dilworth Firm, excepting only my service 
between 1980 and 1982 as a Jusucc of the Pennsylvania Supreme Court. 

3) the dates, names and addresses of law firms or offices, companies 
or governmental agencies with which you have been connected, and 
the nature of your connection with each; 

• Dilworth, Paxson, Kaljsb 

& KaufTman LLP 

3200 The Mellon Bank Center 
1735 Market Su-eet 
Philadelphia. Pennsylvania 19103 

Chairman (1982- ) 

Chairman of Litigation Department (1975 -- 1980; 1992- ) 

Partner (1965-- ) 

8 



94 



Associate (1960 -- 1965) 

• UNIVERSITV OF PENNSYLVANIA 
SCHOOL OF LAW 

3400 Chestnut Street 
Philadelphia, Pennsylvania 19104 

Adjunct Professor (1995- ) 

17b 1) What has been the general character of your law practice, dividing 
it into periods with dates if its character has changed over the 
years? 

My individual practice has foc.used on complex conunercia] litigation. 
Although my practice has expanded into many areas over my thirty- 
seven years as a lawyer, its principal focus has always been civil 
litigation . 

2) Describe your typical former clients, and mention the areas, if any, 
in which you have specialized. 

I have had the opportunity to represent hundreds of corporate and 
individual clients during my practice, including Linon Industries, 
Occidental Petroleum Corporation, Dr. Armand Hammer, Excel 
Communications, Spectro Industries, Inc., Frank Sinatra, the Barnes 
Foundation, Donald Trump, Montgomery County (Pennsylvania), the 
School District of the City of Philadelphia, The Philadelphia Electric 
Company ("PECO"), as well as a coalition of four United States 
Senators, five members of the House of Representatives and three 
Governors before the United States Supreme Court challenging the 
closure of the Philadelphia Naval Shipyard. 

My areas of specialty include antitrust law, civil rights law, contract 
law, statutory interpretation, constitutional law, commercial fraud, 
environmental law, regulatory law, and the law of defamation and libel. 

17c. 1) Did you appear in court frequently, occasionally, or not at all? If 

the frequency of your appearances in court varied, describe each 
such variance, giving dates. 

Throughout my thirty-seven year legal career, I appeared in both federal 
and state courts on a frequent basis 



95 



2) What percentage of these appearances was in: 

(a) federal courts: 75% 

(b) state courts of record ; 25 7c 

(c) other courts; 0% 

3) What percentage of your litigation was: 

(a) civil: 95% 

(b) criminal: 5% 

4) State the number of cases in courts of record you tried to verdict or 
judgment (rather than settled), indicating whether you were sole 
counsel, chief counsel, or associate counsel. 

I would estimate that, as chief counsel, I have tried approximately 
twenty cases to a verdict or judgment. During my thirty-seven years of 
practice, I also have served as associate counsel in numerous other 
cases that were tried to verdict or judgment. 

5) What percentage of these trials was: 

(a) jury: 5% 

(b) non-jury: 95^ 



10 



96 



IS. Litigation : Describe the ten most significant litigated matters which you 

personally handled. Give the citations, if the cases were reported, and the 
docket number and date if unreported. Give a capsule summary of the 
substance of each case. Identify the party or parties whom you 
represented; describe in detail the nature of your participation in the 
litigation and the fmal disposition of the case. Also state as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges before 
whom the case was litigated; and 

(c) The individual name, addresses, and telephone numbers of 
co-counsel and of principal counsel for each of the other parties. 

1. Pia77a V Major League Baseball . 

Reported Decisions: 

Piazza V. Major League Baseball, 

836 F. Supp. 269 (ED. Pa. 1993) 

Piazza V. Major League Baseball, 

831 F Supp. 420 (ED. Pa. 1993) 

Summary: For the first time since the Supreme Court's 1922 decision 
declaring the "business of baseball " to be exempt from antitrust regulation, a federal court 
held that such antitrust immunity was narrowly limited to conduct involving baseball's reserve 

clause, which wai not at issue in the case. 

As lead counsel. I represented the plaintiffs, who had been excluded from a 
group attempting to purchase the San Francisco Giants Baseball Club (as a result of 
defamatory statements made by representatives of Major League Baseball concerning the 
background of one client). In a landmark antitrust decision, the District Court held that Major 
League Ba.seball's 70 year old judicially created exemption from federal antitrust laws did not 
immunize Baseball's conduct in excluding plaintiffs. After extensive discovery and 
immediately before jury selection, I negotiated a favorable financial settlement on behalf of 
the plaintiffs, and obtained on their behalf a formal apology from Major League Baseball. As 
lead counsel for plaintiffs, I presented all oral arguments, deposed the central witnesses, and 
directed the trial team in all phases of the litigation. 

Parties Represented: Vincent M. Piazza and Vincent N. Tirendi 

Dates: 1992 - 1994 



11 



97 



Court: United States District Court for the Eastern District of Pennsylvania, 

before The Honorable John R Padova. 

Co-Counsel: 

Mark J. Levin, Esq.' 
Ballard Spahr Andrews & Ingersoll 
1733 Market Street, 51st Floor 
Philadelphia, Peiuisylvania 19103 
(215) 864-8200 

Counsel for Defendants: 

Arthur Makadon, Esq. 
Ballard Spahr Andrews & Ingersoll 
1735 Market Street, 51st Floor 
Philadelphia, Pennsylvania 19103 
(215) 864-8200 

Robert J. Khccl, Esq. 

Willkie, Fan- & Gallagher 

One Citicorp Center 

153 East 53rd Street 

New York, New York 10022-4669 

(212) 821-8234 

2. Specter v. John H. Dalton. Secretary of the XaY>' . 

Reported Decisions: 

Dalton V. Specter, 114 S. Ct. 1719 (1994) 
Specter V. Garrett, 971 F.2d 936 (3d Cir. 1992) 
Specter v. Garrett. Ill F. Supp. 1226 (E.D. Pa 1991) 

Suoimary: During the 1993 round of military base closures, the Base Closure 
Commission recommended that the Philadelphia Naval Shipyard be shut down, which would 
result in the loss of thousands of jobs and have a devastating impact on regional businesses 
that served the Shipyard. I served as lead counsel in a bipartisan pro bono effort to keep the 
Shipyard open. After extensive discovery, it became clear that the Commission had failed to 
comply with the express mandates of Congress. Although my argument was twice successful 
in the United Sutes Court of Appeals for the Third Circuit, the Supreme Coun ultimately 



Mr. Levin was a parmer at the Dilworth Firm through 1996. 

12 



98 



decided that the federal courts lacked jurisdiction to review base closure decisions. As lead 

counsel for plaintifts, I supervised all phases of the litigation, deposed the critical witnesses, 
and presented the oral arguments before the district court and the court of appeals. 

Parties Represented; United States Senators Arlcn Specter, Harris Wofford, 
Bill Bradley and Frank R Lautenberg; United States Representatives Robert E. Andrews, 
Curt Weldon, Marjorie Margolies-Mczvinsky, James C. Greenwood and Robert A. Borski; 
the Commonwealth of Pennsylvania and its Governor Robert P. Casey and Attorney General 
Ernest D. Preate, Jr.; the State of New Jersey and its Governor James J. Florio and Attorney 
General Fred DeVesa; the State of Delaware and its Governor Thomas R. Carper; the City of 
Philadelphia, the International Federation of Professional and Technical Engineers, Local 3; 
the Metal Trades Council, Local 687 Machinists; Planners Estimators Progressmcn & 
Schedulers Union, Local No. 2; and Union representatives William F. Reil, Howard J. 
Landry and Ronald Warrington. 

Dates: 1991 -- 1994 

Courts: United States Supreme Court; United States Court of Appeals for the 
Third Circuit, before The Honorable Walter K. Stapleton, The Honorable Anthony J. Scirica, 
and The Honorable Samuel A. Alito, Jr.; United States District Court for the Eastern District 
of Pennsylvania, before The Honorable Ronald L. Buckwaltcr. 

Co-Counsel: 

Senator Arlen Specter 
Green Federal Bldg., Room 9400 
Sixth and .Arch Streets 
Philadelphia, Pcnnsylvama 19106 
(215) 597-3580 

Counse] for Defendants: 

Drew S. Days (former U.S. Solicitor General) 

Yale Law School 

P.O. Box 208215 

New Haven, Connecticut 06520-8215 

(203) 432-4948 

Scott R. Mcintosh, Esq. 
Department of Justice 
Civil Division. Appellate Staff 
950 Pennsylvania Avenue, N.W. 
Washington, DC. 20004 
(202) 514-1201 

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Stuart M. Gerson, Esq. 
Epstein, Becker & Green, PC. 
1227 25lh Street, N.W.. Suite 700 
Washington, DC. 20037 
(202) 861-0900 

3. Philadelphia Newspapers. Inc. v Borough of Swarthmore. 

Reported decisions: 

Philadelphia Newspapers, Inc. v Borough of Swarthmore, 
381 F. Supp. 228 (E.D Pa. 1974) 

Summary: In a case of first impression in the federal courts, the district court 
held that a borough ordinance totally prohibiting the placement of newspaper honor boxes on 
public sidewalks violated the First and Fourteenth Amendments to the Federal Constitution. 
In so holding, Judge Fogel concluded that the First Amendment guaranteed publishers the 
right to distribute newspapers by means of honor boxes or other vending devices placed on 
public sidewalks, subject only to reasonable, narrowly tailored regulation as to the place and 
maimer of distribution. The borough's blanket prohibition of newspaper honor boxes, 
concluded the district court, could not be squared with the Supreme Court's long recognition 
of "the imporunce of the right of access to public streets for the free dissemination of 
mformation." As lead counsel, I obtained a preliminary injunction restraining the borough's 
enforcement of the ordinance and, following a two day trial, .succeeded in obtaining 
permanent injunctive and declaratory relief against the borough. 

Parties Represented: Philadelphia Newspapers, Inc. 

Date: 1974 

Court: United Sutes District Court for the Eastern District of Pennsylvania, 
before The Honorable Herbert A. Fogel. 

Co-Counsel: 

Richard L. Bazelon, Esq. 

Bazelon & Less 

1515 Market Street 

7th Floor 

Philadelphia, Pennsylvania 19102 

(215) 568-1155 



14 



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Counsel for Defendants: 

G. Gu> Smith. Esq. 
Harris & Smith 
211 West State Street 
Media, Pennsylvania 19063 
(610) 565-5300 

4. In re the Barnes Foundation . 

Reported Decisions: 

In re ihe Barnes Foundation. 453 Pa Super. 243, 683 A. 2d 894 (1996) 

In re the Barnes Foundation. 449 Pa. Super. 81, 672 A. 2d 1364 (1996) 

In re the Barnes Foundation. 14 Fiduc.Rep.2d 92, appeal dis., 
661 A. 2d 889 (Pa. Super. 1995) 

In re the Barnes Foundation. 12 Fiduc.Rep 2d 349 (1992), 

aff'd. 430 Pa Super 655, 630 A. 2d 468, appeal denied. 535 Pa 628, 
631 A. 2d 1002 (1993) 

Summary: The preservation of a world class, priceless art collection was 
threatened by provisions of the eccentric, seventy- year old Trust Indenture of Dr. Albert C. 
Barnes, which prohibited even the temporary removal of any part of the collection from the 
walls of a rapidly deteriorating facility. Before the Montgomery County Court of Common 
Pleas. Orphan.s' Court Division, I successfully overcame determmed opposition and won 
approval of the Barnes Foundation's requests to permit a one-time micmational exhibition 
tour of approximately eighty works of art from the Foundation's preeminent collection of 
Impressionist and Post-Impressionist paintings. The international tour raised more than $16 
million and generated good will for the Foundation. The funds raised from the tour enabled 
this public charity, whose endowment was being depleted, to undertake a critically needed 
restoration project to modernize the Foundation's deteriorating systems and to install a statc- 
of-the art security system to monitor the entire collection, 1 served as lead trial counsel and 
presented all appellate arguments before the Superior Court. 

Parties Represented: The Barnes Foundation and its Trustees (Richard H. 
Glanton, Esq., Shirley A. Jackson, Ph.D., Niara Sudarkasa, Ph.D., Charles A. Frank, HI, 
and Cuyler H. Walker). 

Dates: 1992 to present; court proceedings in 1992, 1993 and 1995. 



15 



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Courts: Pennsylvania Supreme Coun; Pennsylvania Superior Court, before 
The Honorable James R Cavanaugh, The Honorable John T. J. Kelly. Jr., and The 
Honorable Peter Paul Olszewski, and before The Honorable Patrick R. Tamilia. The 
Honorable James E. Rowley, and The Honorable Thomas G Say lor. Court of Common Pleas 
of Montgomery County, Pennsylvania, Orphans Court Division, from 1992 to 1994, before 
The Honorable Louis D. Stefan; from 1992 to the present, before The Honorable Stanley R. 
Ott. 

Co-Counsel: 

Mason Avrigian, Esq. 

Wislcr, Pearlstine, Talone, Craig, 

Garrity & Potash 
484 Norristown Road 
Blue Bell, Pennsylvania 19422 
(610) 825-8400 

Counsel for Other Parties: 

S. Gordon Elkins, Esq. 

Jeffrey A. Lutsky, Esq. 

Stradley, Ronon, Stevens & Young 

2600 One Commerce Square 

Philadelphia, Pennsylvania 19103-7098 

(215) 564-8013 

Marvin Garfinkel. Esq. 

Mesirov, Gelman, Jaffe, Cramer & Jamieson 

1735 Market Street 

Philadelphia, Pennsylvania 19103 

(215) 994-1450 

Lawrence BarUh, Esq. - Assistant Anomey General 

21 S. 12th Street 

3rd Floor 

Philadelphia, Pennsylvania 19107 

(215) 560-2402 

J. Brooke Aker. Esq 

60 East Perm Street 

P.O Box 150 

Norristown, Pennsylvania 19404 

(610) 275-8200 



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Arthur L, Jenkins, Jr., Esq. 

325 DeKalb Street 

P.O. Box 710 

Norristown, Pennsylvania 19404 

(610) 275-8222 

S. American Bearing Co. v. Litton Industries. Inc. . 

Reported Decision: 

American Bearing Co. v. Litton Industries, Inc. , 

729 F 2d 943 (3d Cir. 1984) 

Summary: I represented defendant Litton Industries in an action brought by 
American Bearing alleging Uiar Litton had attempted to monopolize the market for certain 
bearing components of industrial air pollution control devices. In a successful effort to 
remedy a miscarriage of justice and unfortunate antitrust precedent, I led the team effort to 
obtain a new trial and then served as lead trial counsel following remand to the district court. 
Following an initial two week jury trial resulting in a verdict for plaintift, the district court 
granted defendant's motion for a new trial (I did not participate in the original trial). On 
retrial, the district court granted my motion for a directed verdict. The Third Circuit 
affirmed I participated in and supervised the briefmg on appeal and presented the successful 
oral argument 

Parties Represented: Litton Industries, Inc. 

Dates: 1982 -- 1984 

Courts: United States Court of Appeals for the Third Circuit, before The 
Honorable Arlin M. Adams, The Honorable Edward R. Becker, and The Honorable Francis 
L Van Dusen, United States District Court for the Eastern District of Pennsylvania, before 
The Honorable Raymond J. Broderick. 

Co-Counsel: 

David H. Pinmsky, Esq. 
Ballard Spahr Andrews & Ingersoll 
1735 Market Street, 51st Floor 
Philadelphia, Pennsylvania 19103-7599 
(215) 864-8117 



17 



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Counsel for Plaintiff: 

Gary Wynkoop, Esq. (deceased) 
Blank Rome Comisky &. McCauley 
Four Penn Center Plaza 
Philadelphia, Pennsylvania 19103 
(215) 569-5500 

6. Pennwalt Corp. v. Centaur Partners . 

Reported Decision: 

Pennwalt Corp. v. Ceniaur Parinen,, 

710 F. Supp. Ill (E.D. Pa. 1989) 

Sununary: In a case of first impression under Pennsylvania's newly enacted 
anti-takeover statute, I served as lead counsel in challenging the statute's constitutionality My 
client. Cenuur Partners, a major Pennwalt shareholder, attempted to call a shareholders 
meeting to vote on removing obstacles to a possible acquisition of Permwalt by Centaur or a 
third party. Pennwalt's board of directors brought an action in federal court seeking to block 
the shareholders meeting. Centaur opposed the restraining order, arguing that the anti- 
takeover statute, upon which Pennwalt's board was relying, violated the Coiruncrce Clause of 
the Federal Constitution. While the district coun initially rejected Pennwalt's various 
abstention arguments, it ultimately concluded that there was no direct conflict between the 
anti-takeover statute and federal law. While the case was on apf)eal. a third-party offered to 
purchase Pennwalt's shares at a price approximately 30% above that which Centaur was 
offering, and the board accepted the bid. 

Parties Represented CenUur Partners 

Date: 1989 

Courts: The United States District Court for the Eastern District of 
Permsylvania. before The Honorable Robert S. Gawthrop, III. 

Co-Counsel: 

David H. Pittinsky, Esq. 
Ballard Spahr Andrews & Ingcrsoll 
1735 Market Street. 5 1st Floor 
Philadelphia, Pennsylvania 19103-7599 
(215) 864-8117 



18 



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Counsel for PlaintifT: 

Matthew J Brodcrick, Esq. 
Dechert Price & Rhoads 
4000 Bell Atlantic Tower 
1717 Arch Street 
Philadelphia, Pennsylvania 19103 
(215) 994-2652 

7. Township of Phmouth v. County of Montgomery 

Reported Decisions: 

Township of Ptymouth v. County of Montgomery , 

121 Pa. Conunw. 303, 550 A.2d 1033 (1988) 

Township of Plymouth v. Montgomery County, 

109 Pa.Commw. 200, 531 A.2d 49 (1987) 

Sununary: The Commissioners of Montgomery County, Pennsylvania 
determined that a trash-to-stcam facility was necessary to protect the environment of the entire 
County and to resolve the County's growing refuse disposal crisis. Although everyone 
recognized that such a facility was needed, residents of Plymouth Township (in which the 
facility was to be located) believed that it should be built in someone else's township. 
Reflecting the "not in my back yard" theme, Plymouth Township brought suit against 
Montgomery County seeking a declaration that the County's trash-to-steam facility violated 
recently enacted Township zoning laws. Despite exceptionally bitter opposition, I obuined a 
judicial declaration that the Township's zoning laws were invalid, and defeated the 
Township's prolonged legal challenges to block the critically needed facility. As lead counsel 
for the County, I presented all arguments and supervised all aspects of the litigation team's 
efforts. 

Parties Represented : County of Montgomery 

Dates: 1986 - 1988 

Courts: The Commonwealth Court of Pennsylvania, before The Honorable 
David W. Craig, The Honorable Bernard L. McGinley, The Honorable James Crumlish, Jr., 
The Honorable John A. MacPhail, The Honorable Joseph T. Doyle and The Honorable 
Francis A Barry; Court of Common Pleas of Montgomery County, before The Honorable 
Wilson Bucher. on Special Assignment from the Court of Common Pleas of Lancaster 
County. 



19 



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Co-Counsel; 

Shcryl L. Auerbach, Esq. 

Dilworth, Paxson, Kalish & Kauffman, LLP 

3200 The Mellon Bank Center 

1735 Market Street 

Philadelphia, Pennsylvania 19103 

(215) 575-7124 

Counsel for PlaintifT: 

Arthur W. Lcfkoe, Esq (retired) 
Wisler, Pearlstein, Talone, Craig, 

Garrity & Potash 
484 Norristown Road 
Blue Bell, Pennsylvania 19422 
(610) 825-8400 

8. Robert Bruce. Inc. v. Sears. Roebuck & Co. . 

Reported Decision: 

Robert Bruce, Inc v Sears, Roebuck & Co. , 
343 F. Supp. 1333 (ED. Pa. 1972) 

Summary: In a case pitting a "modem merchandising monolith" against a 
much smaller clothing manufacturer, I succeeded in defending the enormously valuable 
trademark rights of my client, Robert Bruce, Inc., which had spent years developing and 
marketing its highly successful "Grubb" line of clothing. At the lime this trademark 
infringement action was brought, the "Grubb" line represented 50% of Robert Brucc's total 
clothing sales In 1971 Sears Roebuck began selling jeans under the "Neets n Grubs" 
trademark, and refused the demand of Robert Bruce to cease and desist from the infringing 
conduct. After a two week trial in which I served as lead counsel, the district court held that 
the "Grubb" mark was "arbitrary and fanciful." rather than descriptive, and was thus entitled 
to protection without proof of secondary meaning. The district court further held that the 
'Neets D Grubs ' mark created a likelihood of consumer confusion, and thus enjoined Sears 
from further use of the mark. 

Parties represented: Robert Bruce, Inc. 



20 



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Co-Counsel: 

Arthur H. Seidel, Esq. 
Scidel, Gonda, Lavorgna & Monaco, PC. 
Two Pcnn Center, Suite 1800 
Philadelphia, Pennsylvania 19102 
(215) 368-8383 

Dates: 1971 -- 1972 

Court: United States District Court for the Eastern District of Pennsylvania, 
before The Honorable Edward R. Becker. 

Counsel for Defendaot: 

Burton Y. Weitzenfeld, Esq. 
120 South Riverside Plaza 
Chicago, Illinois 60606 
(312) 876-7100 

Charles M. Allen. Esq. 

Howsen & Howsen 

P.O. Box 457 

Spring House, Pennsylvania 19477 

(215) 540-9200 

9. Molinari v. Commonwealth of Pennsylvania. Department of Transportation . 

Commonwealth Court of Pennsylvania, No. 453 M.D. 199 (1993) 

Summary: In this bid contest case, I represented Envirotesi Partners, one of 
the largest African-.^merican owned and managed companies in the nation Following a 
comprehensive evaluation of proposals submitted in response to the Commonwealth's Request 
for Proposals ("RFP"), the Commonwealth awarded Envirotest the contract to implement and 
operate an enhanced centralized vehicle emission insf>ection program required to bring 
Pennsylvania into compliance with the Federal Clean Air Act Amendments of 1990. A 
disappointed bidder sought to enjoin the contract award, alleging, inter alia, that the RFP 
points awarded to Envirotest as a Socially/Economically Restricted Business ("SERB") had 
been improperly calculated by the SERB evaluation comminec In effect the disappointed 
bidder was challcngmg the administration of the entire SERB program. Following a six day 
trial during which I served as lead counsel for Envirotest, the Commonwealth Court held that 
Envirotest 's SERB points had been properly calculated and upheld the Commonwealth's 
selection of Envirotest to implement the emissions testing program. 

Parlies Represented: Envirotesi Partners 
21 



107 



Dates: 1993 

Court: Commonwealth Coim of Pennsylvania, before The Honorable James R. 



Kelley. 

Co-Counsei: 

John L. Heaion, Esq. 

(then Chief Counsel of Pa. Dept. of Transporuiion) 

Weiss, Weiss & Weiss 

802 Walnut Street 

P.O. Box 838 

Lebanon, Pennsylvania 17042 

(717) 273-1661 

Counsel for Plaintiffs: 

Michael D. Reed, Esq. 
Mette, Evans & Woodside 
3401 North Front Street 
P.O. Box 5950 

Harrisburg. Pennsylvania 17110 
(717) 232-5000 

10. Bethlehem Steel Corp. v. Litton Industrie.s. Inc. 

Reported Decision: 

Bethlehem Sreel Corp. v. Litton Industries, Inc.. 321 Pa. Super. 357, 468 A 2d 
748 (1983), aff'd, 507 Pa. 88, 488 A.2d 581 (1984) 

Summary: As lead counsel, I defended Litton and its Lake Erie shipbuilding 
division in a $95 million breach of contract claim brought by Bethlehem Steel. In 1968, 
Bethlehem Steel purchased a 1000 foot, state-of-the-art, self-unloading iron ore carrier from 
Litton for transporting ore between Michigan mines and Pennsylvania steel mills. At the end 
of 1968, Betlilehem and Litton executed a two page "option" letter under which Linon 
offered to construct up to five similar ships for Bethlehem within the next five years. In the 
ensuing years, however, Bethlehem repeatedly told Litton that it did not intend to order any 
additional ships, and Litton began dismantling its Lake Erie shipbuilding facilities. 

In 1973, Bethlehem reversed course and purported to order three new 1000 
foot self-unloading iron ore carriers. After the parties were unable to reach agreement on 
critical contract terms, particularly with respect to inflation indexing, Bethlehem broke off 
negotiations and filed a $95 million breach of contract claim in the Allegheny County 

22 



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Common Picas Court. Following a nine month trial, the court held that the two page option 
letter, executed by two of the nations largest corporations, could not have been intended by 
the parties to constitute an enforceable option coDtract. Following en banc review by three 
judges of the Common Pleas Court, the decision was affirmed by both the Pennsylvania 
Superior and Supreme Courts. I served as Litton's lead counsel for both the trial and the 
ap(>eals in this case. 

Party Represented: Litton Industries. Inc. 

Court: Pennsylvania Supreme Court, before The Honorable John P Flaherty, 
The Honorable William D. Hutchinson, The Honorable Rolf Larscn, and The Honorable 
Stephen A. Zappala; Superior Court of Pennsylvania, before The Honorable William F. 
Cercone, The Honorable John P. Hester, The Honorable James R Cavanaugh, The 
Honorable Richard B Wickersham, The Honorable James E. Rowley, The Honorable Donald 
E Wieand. and The Honorable T Sidney' Hoffman; Court of Common Pleas of .Allegheny 
County, before The Honorable Maurice Louik. 

Co-Counsel: 

Carl H. Hanzelik, Esq. 

Diiworth, Paxson, Kalish & Kauffinan, LLP 

3200 The Mellon Bank Center 

1735 Market Street 

Philadelphia, Pennsylvania 19103 

(215) 575-7150 

Counsel for Plaintiff: 

William B. Mallin, Esq. 

Eckert Seamans Cherin & Mcllott 

600 Grant Street 

Pittsburgh, Pennsylvania 15219 

(412) 566-6027 

Hon. Robert L. Byer 

Kirkpatrick & Lockhart, LLP 
1500 Oliver Building 
Pittsburgh, Pennsylvania 15222 
(412) 355-6500 



23 



109 



Curtis H. Barnette, Esq. 
President &. CEO 
Bethlehem Steel Corp. 
8lh & Eaton Avenues 
Bethlehem, Pennsylvania 19180 
(216) 694-2424 

I have had contact with the following judges and attorneys within the last five 
years: 

The Honorable Edward R. Becker 

United Sutes Court of Appeals for the Third Circuit 

601 Market Street, Room 19613 

Philadelphia, Pennsylvania 19106 

(215) 597-9642 

The Honorable Raymond J. Broderick 
United States District Court for the 
Eastern District of Pennsylvania 
601 Market Street, Room 10613 
Philadelphia, Pennsylvania 19106 
(215) 597-7500 

The Honorable Robert S Gawthrop, III 
United States District Court for the 
Eastern Distnct of Pennsylvania 
601 Market Street, Room 7613 
Philadelphia, Pennsylvama 19106 
(215) 597-6143 

The Honorable John R. Padova 
Umted States District Court for the 
Eastern District of Pennsylvania 
601 Market Street, Room 7614 
Philadelphia, Pennsylvania 19106 
(215) 597-1178 

The Honorable Louis H. Pollack 
United States District Court for the 
Eastern District of Pennsylvania 
601 Market Street, Room 16613 
Philadelphia, Pennsylvania 19106 
(215) 597-9590 



24 



no 



The Honorable Arlin M. Adams 

Schnader, Hainson, Segal & Lewis 

1600 Market Street 

Suite 3600 

Philadelphia, Pennsylvania 19103-7286 

(215) 751-2072 

Richard H. Glanton. Esq. 
Reed, Smith, Shaw & McClay 
2500 One Liberty Place 
Philadelphia, Pennsylvania 19103-7301 
(215) 851-8120 

Anhur G. Rayncs, Esq. 

Rayne.';, McCarty, Binder, Ross & Mundy 

1845 Walnut Street 

Suite 2000 

Philadelphia, Pennsylvania 19103 

(215) 568-6190 

David Berger, Esq. 

Berger & Montague, PC 

1622 Locust Street 

Philadelphia, Pennsylvania 19103-6365 

(215) 875-3030 

Jerome J Shestack. Esq. 

Wolf, Block. Schorr & Solis-Cohen 

12th Floor, Packard Building 

15th & Chestnut Streets 

Philadelphia, Penn.<;ylvania 19102-2678 

(215) 977-2290 



25 



Ill 



19. Legal Activities : Describe the most significant legal actiyities you have 

pursued, including significant litigation which did not progress to trial or 
legal matters that did not involve litigation. Describe the nature of your 
participation in this question, please omit any information protected by the 
attorney-client privilege (unless the privilege has been waived.) 

• MeiloD Bank. N.A. v. Richard I. Rubin. Inc. : In a series of lawsuits in the 
Court of Common Pleas of Philadelphia County, before the Honorable Sandra 
M. Moss, Mellon Bank sued my clients, Richard I. Rubin & Co., Inc., Ronald 
Rubin and related entities, on account of Rubin's refusal to close on the 
purchase of the Two Mellon Building. Mellon sought injunctive relief to force 
Rubin to close the transaction. Subsequent to the Court's denial of Mellon's 
motion for the injimction, a disastrous fire destroyed the adjacent building. One 
Meridian, reducing the market value of Two Mellon by 90%, and Mellon 
claimed damages exceeding S42 million After extensive discovery and 
numerous court appearances, the parties entered into a settlement agreement 
favorable to Rubin 

• Chair — Commission to Preserve Legal Funding for All : I led the fight to 
restore over $2 million in state funding for legal services to those in need but 
unable to afford a lawyer. 

• Pennsylvania Judicial Inquiry and Review Board : While serving on this 
Board between 1984 and 1988, the final year as Chairman, I reviewed 
complaints brought against members of the judiciary and, where appropriate, 
recommended disciplinary action to the Pennsylvania Supreme Court. 

• Philadelphia Special Investigation Commission : During its two year 
investigation, I served on the MOVE Commission, appointed by Mayor Wilson 
Goodc to investigate the causes of a police action resulting in the deaths of a 
number of children and adults and the destruction of an entire city block. Our 
Commission focused not only on the causes of this tragedy, but on finding 
ways to ensure that it would never be repeated, 

• Pardon of Dr. Armand Hammer : Dr. Armand Hammer pled guilty to 
making an illegal campaign contribution to President Nixon's 1972 Reelection 
Campaign. As lead counsel in seeking a Presidential pardon for Dr Hammer, I 
reviewed the guilty plea and filed briefs with the Pardon Attorney of the 
Department of Justice. Dr. Hammer's pardon was granted by President Bush in 
1989. 



26 



112 



II. FLNANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, aiaounts and dates of all anticipated receipts from deferred 
iDcome arrangements, stock, options, uncompleted contracts and other 
future benefits which you expect to derive from previous business 
relationships, professional services, firm memberships, former employers, 
clients, or customers. Please describe the arrangements you have made to 
be compensated in the future for any financial or business interest. 

Under my original agreement with the Dilworth Firm, in accordance with its 
standard ten year retirement program, I was to receive $200,000 annually 
during my first five years of judicial service, and $100,000 annually for each 
of the following five years. To minimize any potential for the appearance of 
conflict, however, the Firm has agreed to pay for the five annual $100,000 
installments through a fully paid up ahnuity funded by the Firm during the first 
five years of my judicial service. Payments under this annuity shall be 
administered by an independent third party. I intend to recuse myself in any 
case in which the Dilworth Firm is involved during the entire ten year period 
in which I am to receive payments under my retirement program. A copy of 
my agreement with the Firm is included as Attachment "A." 

In 1995, USABancShares granted me options to purchase up to 30,000 shares 
of the Company's common stock. 

Explain how you will resolve any potential conflict of interest, including 
the procedure you will follow in determioins these areas of concern. 
Identify the categories of litigation and financial arrangements that are 
likely to present potential conflicts-of-interest during your initial service in 
the position to which you have been nominated. 

I will resolve any potential conflict of interest through adherence to the Rules 
of Judicial Conduct. More specifically, if my appointment to the federal 
judiciary is confirmed, I intend to recuse myself in any case in which the 
Dilworth Firm is counsel of record. I will also recuse myself from any case in 
which a former client or a business entity in which I have an interest is a 
party, in which USABancShares is party, or in which the University of 
Pennsylvania is a party. 

Do you have any plans, commitments, or agreements to pursue outside 
employment, with or without compensation, during your service with the 
court? If so, explain. 

If my appointment to the federal judiciary is confirmed, I will resign as 
Chairman of the Board of Directors of USABancShares, Inc. 



27 



113 



During the past two fall semesters, I served as an Adjunct Professor of Law at 
the University of Pennsylvania's School of Law and would hope to continue 
doing so if confirmed. If I do continue teaching at Pcnn, I would, of course, 
recuse myself in any lawsuit in which the University is a party. 

4. List sources and amounts of aU income received during the calendar year 
preceding your nomination and for the current calendar year, including all 
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, 
and other items exceeding $500 or more (If you prefer to do so, copies of 
the financial disclosure report, required by the Ethics in Government Act 
of 1978, may be substituted here.) 

See Atuchmcnt "B" (Form AO-10) 

5. Please complete the attached financial net worth statement in detail (Add 
schedules as called for). 

See Attachment "C" (Financial Net Worth Statement) 

6. Have you ever held a position or played a role in a political campaign? If 
so, please identify the particulars of the campaign, including the candidate, 
dates of the campaign, your title and responsibilities. 

In 1991, I served in Ronald D. Castille's campaign in the Philadelphia mayoral 
race. The campaign ended in June, 1991, when Mr. CastiUe, who is now a 
Justice of the Supreme Court of Pennsylvania, was defeated in the Republican 
primary election, I also served in Justice Castille's successful campaign for 
election to the Supreme Court of Pennsylvania. 



28 



114 



III. GENERAL (PUBLIC) 

An ethical consideration under Canon 2 of the American Bar Association's 
Code of Professional Responsibilit)' called for "every lawyer, regardless of 
professional prominence or professional workload, to find some time to 
participate in serving the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing speciHc instances and the amount of 
time devoted to each. 

- Chair - Commission to Preserve Legal Funding for All : I led the fight to 
restore over S2 million in state funding for legal services to those in need but 
unable to afford a lawyer. Between meetings in Philadelphia, Harrisburg, and 
Washington, I spent several hundred hours in this effort. 

• Philadelphia Navy Yard Litigation : I represented a bipartisan coalition of 
elected officials and Shipyard workers in a three year legal effort to prevent the 
Shipyard's unlawful closure. During the course of litigation that ended in the 
Supreme Court, the Dilworth Firm expwnded over $1 million in legal time on a 

pro bono basis. 

• Philadelphia Police Advisor^' Commission : Esublished by Mayor Rendell in 
1994, the Police Advisory Commission has been given the vital task of 
monitoring and improving the relationship between the Philadelphia Police 
Department and the communities and citizens the Department serves. From the 
Commission's inception, I have participated in all phases of its work, 
reviewmg not only individual allegations of abuse, but broader issues of police 
policy and procedures. I spend several hours per month on Commission related 
activities. 

• Mayor's Task Force on Minority Employment in the Philadelphia Police 
Department : At the request of Mayor William Green, I chaired a commission 
that studied and issued a unanimous report on measures to remedy the low 
minority representation in the Philadelphia Police Department. I devoted 
approximately one hundred hours to Task Force meetings and in preparing the 
Final Report. 

• Philadelphia Special Investigation Commission : During its two year 

investigation, I served on the MOVE Commission, appointed by Mayor Wilson 
Goode to investigate the causes of a police action resulting in the deaths of a 
number of children and adults and the destruction of an entire city block. Our 
Commission focused not only on the causes of this tragedy, but on finding 
ways to ensure that it would never be repeated. Televised hearings took place 
over several weeks, and I estimate that I devoted five hundred hours of time to 
MOVE Commission work. 



29 



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. Philadelphia Bar Foundation - President : The Foundation raised substantial 
funds for distribution to many worthy charities. During the year in which I was 
President of the Foundation, I devoted several hours per week to Foundation 
related activities. 

2. The American Bar Association's Commentary to its Code of Judicial 
Conduct states that it is inappropriate for a judge to hold membership in 
any organization that invidiously discriminates on the basis of race, sex, or 
religion. Do you currently belong, or have you belonged, to any 
organization which discriminates — through either formal membership 
requirements or the practical implementation of membership policies? If 
so, list, with dates of membership. What you have dune to try to change 
these policies? 

To the best of my knowledge, none of the organizations to which I belong 
(disclosed in response to Question I-IO, supra) discriminates on the basis of 
race, sex. or religion. The Union League of Philadelphia, to which I have 
belonged since 1979, first accepted women as fiill members in 1983. 

3. Is there a selection commission in your jurisdiction to reconmiend 
candidates for nomination to the federal courts? If so, did it recommend 
your nomination? Please describe your experience in the entire judicial 
selection process, from beginning to end (including the circumstances 
which led to your nomination and interviews in which you participated). 

I have appeared twice before the Federal Judicial Nominating Commission of 
Pennsylvania, most recently on June 12, 1997, and previously, in early 1996. 
In conjunction with my June 12, 1997 interview, I submitted a revised personal 
data questionnaire to the Commission. I also interviewed with representatives 
of the Department of Justice, the FBI, and the American Bar Association. 
Although I have not received formal notice, I presume that the Commission 
recommended my Nomination to the federal judiciary. 

4. Has anyone involved in the process of selecting you as a judicial nominee 
discussed with you any specific case, legal issue or question in a manner 
that could reasonably be interpreted as asking how you would rule on such 
case, issue, or question? If so, please explain fully. 

No. 

5. Please discuss your views on the following criticism involving "judicial 
activism." 



30 



116 



The role of the Federal judiciar> within the Federal government, and 
within society generally, has become the subject of increasing controrersy 
in recent years. It has become the target of both popular and academic 
criticism that alleges that the judicial branch has usurped many of the 
prerogatives of other branches and levels of government. 

Some of the characteristics of this "judicial activism" have been said to 
include: 

a. A tendency by the judiciary toward problem-solution rather than 
grievance-resolution; 

b. A tendency by the judiciary to employ the individual plaintiff as a 
vehicle for the imposition of far-reaching orders extending to broad 
classes of individuals; 

c. A tendency by the judiciary to impose broad, afTirmative duties 
upon governments and society; 

d. A tendency by the judiciary toward loosening jurisdictional 
requirements such as standing and ripeness; and 

e. A tendency by the judiciary to impose itself upon other institutions 
in the manner of an administrator with continuing oversight 
responsibilities. 

Under the Constitudon's framework of divided powers, the role 
assigned to the judiciary is not to construct the law from the policy 
choices ot mdividual judges, but to interpret and apply that law which 
the elected members of our legislative branch have enacted As 
Hamilton rccogmzed in Federalist No. 78, the judiciary was the "least 
dangerous branch" precisely because it had neither "Force nor Will, but 
merely judgment " The courts must not be transformed into a laboratory 
of social engineering, but should limit their role to that of applying the 
law to the cases and controversies brought before them. In short, it is 
the obligation of judges not to make the law, but to interpret the law 
made by those elected to do so. 



31 



117 

rv. CONFroENTIAL 

1 . FuU name (include aay former names used.) 

Bruce William Kauffman 

2. Address: List current place of residence and office address(es). List all 
office and home telephone numbers where you may be reached. 

Current Residence : 

1820 Rinenhouse Square 

No. 601 

Philadelphia, Pennsylvania 19103 

(215)735-2111 

Office Address : 

Dilworth, Paxson, Kalish 

& Kauf&nan LLP 
3200 Mellon Bank Center 
1735 Market Street 
Philadelphia, Pennsylvania 19103 
(215) 575-7001 

3. Have you ever been discharged from employment for any reason or have 
you ever resigned after being informed that your employer intended to 
discharge you? 

No. 

4. Have you and your spouse Hied and paid all taxes (federal, state and local) 
as of the date of yoiu- nomination? Please indicate if you filed "married 
filing separately." Did you make any back tax payments prior to your 
nominations? If so, give full details. 

As of the date of my nomination, my wife Carol and 1 have paid all federal, 
state, and local taxes owed as of thiit date. Since our marriage, Carol and I 
have filed joint returns. For tax year 1996, we filed a timely request for 
extension, under which we received an extension until August 15, 1997 to file 
our 1996 federal income tax return. As of July 2, 1997, all presently calculable 
federal income tax liability for 1996 was paid in full. On July 14, 1997, we 
made an estimated payment for tax year 1997 of $15,000. 



32 



/i« ne^A OQ 



118 



Has a tax lien or other collection procedure (to include receipt of connputer 
balance due noticed, ever been instituted against you by federal, state, or 
local authorities? If so, give full details. 

I have always filed my tax returns and/or requests for extensions in a timcl> 
fashion With the exception of tax year 1995, I have obtained the abatement of 
late payment penalties for each tax year in which, due to the cash flow 
problems described below, I was unable to pay my full tax liability by April 
15th. I did not seek an abatement of the late payment penalty for tax year 1995 
because it was approximately $600.00, and thus it was less expensive to pay 
the penalty than to go through the abatement process. I have received "balance 
due" notices from the IRS for ux years 1992 through 1995, and anticipate 
receiving a balance due notice for 1996. All "balance due" notices have been 
paid in full. 

The following sets forth my total federal iiKome ux liability for tax years 1992 
through 1996, as well as the date and the amount of my final payment for each 
tax year: 

Amount of 
Tax Year Tax Liability Pate Paid in Full Final Payment 

1996 $177,410 (est.) 7/2/97 $11,003 

1995 $118,854 11/26/96 $54 

1994 $206,956 7/15/96 $14,517 

1993 $120,298 6/19/95 510,000 

1992 $138,312 12/28/93 $78,926 

As explained in my successful requests for abatement of late payment penalties, 
in early 1992 the Dilworth Firm lost almost 50% of its parmers, and following 
this restructuring, suffered a similar percentage decline in its annual revenues. 
During the late 1980's the Firm had also incurred a substantial debt which, 
when combined with this drastic revenue reduction, threatened the Firm's 
viability. 

Through the sacrifices of its partners and a conservative fiscal policy, the Firm 
has survived and prospered. In that process, however, my own annual salary 
has been cut almost in half from its levels in the late 1980 s. When combined 
with my divorce settlement, my own cash flow has been insufficient to pay my 
full income tax liability when due I have also worked out a payment schedule 



33 



119 



with the City of Philadelphia with respect to my real estate ux liabilities, to 
which I have adhered. 

I always tiled my returns or requests for filing extensions in a timely fashion 
As of the date of my nomination, I have paid all federal, state, and local 

income taxes that were due. 

6. Have you or your spouse ever been the subject of any audit, investigation, 
or inquir> for either federal, state, or local taxes? If so, give full details. 

No. 

7. Have you or your spouse ever declared bankruptcy? If so, give particulars. 

No 

8. Have you to your knowledge ever been under federal, state, or local 
investigation for a possible violation of either a civil or criminal statute or 
administrative agency regulation? If so, give full details. Has any 
organization of which you were an officer, director, or active participant 
ever been the subject of such an investigation with respect to activities 
within your responsibility? If so, give full details. 

No 

9. Have you ever been the subject of a complaint to any court, administrative 
agency, bar association, disciplinary' committee, or other profes.<;ional 
group for a breach of ethics, unprofessional conduct or a violation of any 
rule of practice? If so, give particulars. 

No 

10. Have you ever been a party (whether plaintiff, defendant or in any other 
capacity) to any litigation? 

I have been a party in two divorce proceedings. In addition, other than in my 
official or representative capacity as a Justice of the Supreme Court of 
Pennsylvania, or of the various commissions and/or governmental bodies 
disclosed herein, I am aware of three suits filed against the Firm in which I, 
together with other partners in the Firm, were individually named. In one suit. 
123 South Broad Street Corp. v. Cushman & Wakefield. Inc . et al. . Coun of 
Common Pleas. Philadelphia County. Civil Action No. 88-12-5304, brought by 
a previous landlord of the Dilworth Firm, I was originally named a party but 



34 



120 



quickJy dropped, and the dispute was subsequently resolved. The name, current 

address, and telephone number of counsel for plaintiff in that lawsuit is: 

Richard M. Squire, Esq. 

Astor. Weiss, Kaplan «S: Rosenbaum 

The Bellevue 

Broad & Walnut Streets 

Philadelphia, Pennsylvania 19102 

(215) 790-0100 

I was also named individually, along with certain other members of the Firm's 
Executive Committee, in two suits brought by former partners of the Firm 
seeking, inter alia, the return of their capital accounts. Both of those matters 
have been settled. The following reflects docket numbers, and the current 
addresses and telephone numbers of opposing counsel in the lawsuits brought 
by the former partners: 

Edwin Goldsmith v. Dilworth. Paxson. Kalish Sc Kauffman. ct al. . Court of 
Conunon Pleas, Philadelphia County, Civil Action No. 93-04-02165 

Counsel for Plaintiff: 

Alan S. Fellheimer, Esq. 

Fellheimer, Eichen, Braverman & Kasky 

One Liberty Place, 21st Floor 

1650 Market Street 

Philadelphia. Pennsylvania 19103-7334 

(215) 575-3900 

Neil E. Jokelson, Esq. 
Neil E. Jokelson & Associates, PC 
230 South Broad Street 
Philadelphia, Pennsylvania 19102 
(215) 735-7556 

Daniel Evans v. Dilworth. Piixson. Kalish & Kauffman. et al . Court of 
Common Pleas, Philadelphia County, Civil Action No. 94-01-02786 



35 



121 



CouTT-el for Plaintiff. 

Richard P. Myers, Esq. 
Paul, Reich & Myers, PC 
1411 Walnut St, Suite 500 
Philadelphia, Pennsylvania 19102 
(215) 972-7090 



II. Plestse advise the Coininittee of any unfavorable information that may 
affect your nomination. 

I am not aware of any unfavorable informaiioii tliat may affect my nomination. 



36 



122 



AFFIDAVIT 

I, Bruce W. Kauffman, do swear that the information provided in this statement is, 



to the best of my knowledge, true and accurate. 




DATED: August 7, 1997 



123 



nNANCUL DISCLOSURE REPORT 

FOR CALENDAR YEAR 1995 



kIK! 



ira Act of I9li. rub. L. He. 



Kauffman, Bruce W. 



Dilvrorth Paxson Kalish & Kauffnan 



8/4/97 



Oiairman 



«ppropri«ct CVMI 



Cn«rn£«ri or offict Addr«ia 

Dilworth Paxson Kalish & Kauffman, 
3200 Mellon Bank Center 
1735 Market Street 



c. Raporting P«rio4 
1 'l'97-6 ' 30 97 



pltcula' 



K«viawin9 Qftn 



ptiiiditeipiua. PA — t^tm 

IMPORTANT NOTES: The imlnictioiu accompanying iliis form must be followed. Complete all parts, 
checking the NONE box for each seclion where you have no reportable information. Sign on last page. 



I. POSITIONS. (Reporting individual only; see pp. 9-13 of Instructions.) 



n 



POSITION 
NONE (No reportable positions) 



Chainnan of the Board 



Trustee (DC) 



NAME OF O RGANIZATION/ENTITY 



Current Ehploynient 

Dilworth Paxson Kalish & Kauffman, LLP - Exhibit 1 



USA BancShares Inc. - Exhibit 2 



Lauri Ann Kauffman Trust UA/8/7/95 



II. AGREEMENTS. (Rcportingindividualonly, see pp. 14-17 of Instructions.) 

Q&I£ PARTIES AND TERMS 



n 



NONE (No reportable agreements) 



Dilvrorth Paxson Kcilish & Kauffman 
Judicial B ctixonnnt Program 



1997 



USA BanrSlvirpg . Tnr. (wniil d resign) 



Dilworth Paxson Kalish & Kauf firan 
Botironpnt Plan and ' 101 ( k) 



See Part VII 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 

DAIE " - SgypCS AW TYPE 



n 



w^^fAi"^?. 



NONE (No reponable non-inveslnent income) 



The Lawyers Travel Service 



Sole Proprietor-Advertising Services 



Peoples Thrift Savings Bank 



Dilvrorth Paxson Kalish & Kauffman 



S 6.000 
S 433.500 
S 



124 



FINkNCIAI. DISCLOSURE RIPORT 



N«*« Of Mr«ofl Itcpomng 

Kauffnan, Bruce W. 



8 / 4/97 



n 



REIMBURSEMENTS and GIFTS -- irauponatioD. lodging, food, entenainmeiu. 

(Includes those to spouse and dependent diildren; use the parentbeticab '(S)' and '(DC)' to indicate rcponable 
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Inslnictions.) 

SOURCE DESCRIPTION 

NONS (No such reponable reimbursements or gifts) 



E^cenpt 



n 



OTHER GIFTS. (Includes (hose to spouse and dependent children; use the parentheticals '(S)' and '(DC)' lo 
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.) 

SOURCE DESCRIPTION 

NOtn (Nosuch reportable gifts) 



VALUE 



Exenpt 



n 



LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible 
for liability by using the parenthetical '(S)' for separate liability of the spouse. '(J)' for joint liability of 
reporting individual and spouse, and '(DC)' Cor liability of a dependent child See pp. 34-36 of Instructions.) 

CREDITOR DESCRIPTION VALUE CODE 

NONB (No reportable liabilities) 



Great Lakes Higher Education Corp. 
Jefferson Bank 



Student Loan Financing 



K 



Includes Residence 

Vanniic mnrfyirjcg anH rmrmoT-r-i a1 



VALUE CODES: 



SIS. 001 • 550.00 



125 



PUONCIAL DISCL0SUR8 RKPORT 



Mmh or Mrsen ftapontiif 

Kauffman, Bruce W. 



Data ot Rapert 

8 / 4/ 97 



VII. Page I INTVESTMENTS and 

and dependent children. See pp. 



TRUSTS - income, value, transactions 

37-54 of Insiructiou.) 



(Includes those of spouse 



D««erlpclon*et Aa««u 
tinelujling crujt «■••»} 

ladlcjcc wh«r« appllcajil*. e«Bar o( 
cba aaaac by ujlng tfta puanuutteal 
•(JJ- lot Joint oSnaranlTol taport- 
Lnq Individual and apcuja. •($)* for 
■ apanca owoarahlD by tpouaa. • IDC] ' 

Placa ■ (X) * aitar aacb aaaot 
axa«pc froa prior dlaeloauro. 


S- 


"K'lod'ir 


TTmnaaetlolia during rnportlng parlod 




ss.; 


(SI 


(J-H 


(Q-til 


111 


I« not axvnpt fro« dlKlo«ur« 1 




buy? Jail. 




valuas 
coda 


Coda 


Idantlty 01 
buyor/aallar 
lit prlvaca 
cranaactlon) 




NONE ixo taponabla 
incoaa. aaaata, or 
tranaaetiona) 






















' Black Horse Pike Ltd 1984 


D 


Int. 


M 


T 














' Prudential U.S. Treas. NW 


A 


Div. 


K 


T 














' Insured Income Prud. 


A 


Int. 


J 


T 












' 


' Avenham Assoc. (Lim. Ptr) 


B 


Rent 


J 


W 










1 


' Galeria Assos. (Lim. Ptr) 


B 


Rent 


K 


W 










1 


' Tof trees Assoc. (Lim. Ptr) 


B 


Rent 


J 


w 












Huntington Assoc. (Liju. Ptr) 


A 


Rent 


K 


w 














* IRA Rollover 12-30-85 


B 


Div. 


M 


T 










(see exhibit 3 


Dilworth Paxson Retr Plan 


E 


Div. 


M 


T 










( see exhibit 4 ) 


Dilworth Paxson Retr Plan 


E 


Div. 


N 


T 










(see exhibit 5) 


iiLauri Ann Kauffiten Tr (DC) 


B 


Int. 


K 


T 










(see exhibit 6) 


"oilworth Paxson 401 (k) 


D 


Div. 


L 


T 










(see exhibit 7) 






















M 


































































































1 IneoM/OlU Codaa: k.Il.OOe or lau ••{1,001 u l],500 C-}}.SC1 co SS.OOO D.SS.001 CO SIS. 900 

ISM Col. Bl k Ml Ctli.OOl to ISO.OOO P.lsi.OOl CO SIOO.OOO a>!l00.001 to il. 000. 000 H.iUra than il.OOO.OOO 


a vaiua cod«a: J*sis,ooo or laat x-fis,ooi to sso.ooo usso.ooi CO SIOO.OOO M-sioo.ool to saso.ooo 

(So Ool. CI < oil Il.hs6.001 to SSOO.OOO O-SSod.OOl to Sl.OOO.OOO P-Mora than SI. 000. 000 




, . - XMMtmmMBL 


T rB>h/Marka« 


IS«« Col Cil 0>>oo> vaiua 




v.« 


h«r 




K-laeiMCtd 











126 



rOIMtCIXL DISOOSURS REPORT 



Hm of ptraon Raportuig 



vm. ADDITIONAL ESFCXUVUTION or EXPLANATIONS. (ladicatc pan of Rcpon.) 



DC CERimCATION. 

In cotnpliance with the provisions of 28 U.S.C. § 4SS and of Advisory Opinion No. SI of the Advisory Cbmrunee on Judicial Aaivities. 
and to the best of my knowledge a the time after reasonable inquiry, I did no) perform any adjudicatory finxion in any l:<igaiion dunng the 
period covered by this report in whidi I. my spouse, or my minor or dependent children had a finanaal inerest, as defined m Canon 3C(3Xc). 
In the oucome of such litigsbon. 

I certify that all information givtn above (including informaticn pertaining to my spouse and minor or dependent children, if any) is accurate, 
true, and corrplete lo the best of my knowledge and belief and that any information not reported was withheld because it met applicable 
stanxory provisions permitting non-disclostie. 

I firther certify thai earned income from outside employment and honoraria and the acceptance of gifb which have been reported ae ir 
compliance with die provisiors of 5 U.SCA m^?. | SOI el seq., 5 U.SC § 73S3 and Judicial Conference regulations. 



^^ 




M$/^^ 



SignBtuT 

NOTE; ANY INDIVIDUAL \WK) KNOVklRxY AND WILFUU-Y FALSIRES OR FAILS TO RLE THIS flEPORT MAY BE SUBJECT 
TOCTVILANDCRIMINALSANCnONS(5U.&CA. APP. 6,§ 104.) 



FIUNG INSTRUCTIONS: 



Mail sipad origiml aid 3 adftianti copies to: 



Commitiee on rmanul DisclosiR 
Adninistmvc Office of the 

United Staes Couts 
Ot« ColiitixB Orde, N.E., Suite 2-301 
Washii«tan, DC 20S44 



127 



Exhibit 1 



JXTOICIAL RETIREMENT PROGRAM 
BRUCE W. KAUFFMAN 



In the event that Bruce W. Kauffman is appointed to a federal 
or state judicial office prior to December 31, 1997, the Executive 
Committee seeks the authority of the partnership to enter into a 
retirement program, the essential economic terms of which are as 
follows: 

1. Payment from the firm of $200,000 a year for the first 
five (5) years and a fully paid annuity providing for an 
additional $100,000 a year for an additional five (5) 
years (paid $3,846 per week by the law firm for the first 
five years, and $1,923.08 per week (unless the parties 
otherwise agree) paid by the annuity company during the 
second five years) , commencing the first calendar month 
following confirmation and appointment to Judicial 
office. The payments to be made by the firm in years 1 
to 5 include his capital account as of December 31, 
1994.^ Assuming no further payment of undistributed 
1992, 1993 and 1994 income, 91.7962% of each payment 
shall represent a retirement payment and 8.2038% shall 
represent return of capital. The capital portion of such 
payments shall decrease and the retirement portion 
increase if additional 1992, 1993 or 1994 payments are 
made to Bruce W. Kauffman before retirement. For income 
tax purposes only, any negative tax capital shall be 
reflected as income at the end of the last year in which 
the firm makes any payment or, if earlier, the year of 
dissolution. 

2. The retirement income portion of the payments will 
reflect certain characteristics embodied in a retirement 
plan to be adopted soon for certain other partners, 
including: 

(i) no personal liability for any partner in 
respect of these payments; 

(ii) in the event of dissolution, the retirement 
income portion of the obligation of the firm 
to Bruce W. Kauffman is subordinated to all 



^ The books and records of the firm reflect the following 
capital accounts as of December 31, 1994, after consideration of 
1995 and September 1996 distributions of 1994 income and the 
provisions of paragraph 5 below regarding the $60,000 debt: 

Book Capital Account $82,037.91 
Tax Capital Account ($35,995.58) 



128 



outside creditors, financial institutions, 
accrued compensation due any partners, and 
partners' capital accounts; and 

(iii) for the initial 5-year period, $110,000 of the 
retirement income portion of the payments 
shall be subject to an annual limitation on 
the amount paid all retired partners 
(including the above) in the amount of 5% of 
the Distributable Net Income of the 
partnership for the prior fiscal year or 
similar benchmark amount in the event the firm 
is operating as a professional corporation. 
To the extent there is a shortfall in payments 
on account of this provision, the shortfall 
shall be added to the following year's target 
number. Any shortfall remaining at the end of 
5 years shall be paid at such time to Bruce W. 
Kauf fman. 

Contemporaneously, with the effectiveness of this 
Judicial Retirement Program, the law firm will enter into 
an annuity contract with a nationally recognized 
insurance company or similar financial institution, that 
when fully funded after 5 years, will provide an annuity 
for $100,000 a year annual payments to Bruce W. Kauf fman 
for years 6 through 10. An independent third party will 
be appointed to enforce the payment provisions of the 
annuity which are further described below. Bruce W. 
Kauffman shall approve the annuity company and the third 
party or trustee to be appointed. The firm shall pay all 
costs and expenses associated with the annuity. All 
payments due pursuant to the terms of the annuity to 
Bruce W. Kauffman shall be made directly to him, his 
estate and/or surviving spouse, as the case may be. 

In a dissolution or liquidation, any undistributed 
capital remaining owed to Bruce W. Kauffman shall have 
the same priority in payment as the capital account of 
other partners. No partner shall have personal liability 
for payments of capital accounts of other partners. 

All additional undistributed 1995, 1996 or 1997 profits 
or capital due to Bruce W. Kauffman shall be paid to him 
at the rate of 2.778% of such total per month with the 
balance due, if any, at the end of the third year. The 
current balance of 1995 and 1996 undistributed profits or 
capital is $61,883. 

The annual payments, annuity and post-1994 capital 
account payments will constitute the entire obligation to 
Bruce W. Kauffman for his capital account, severance 



129 



payment or otherwise, and the firm agrees to satisfy his 
indebtedness owed to the firm in an amount not in excess 
of $60,000 by way of a reduction to his capital account 
as of 12-31-94. 

7. The firm will assign all life insurance policies to Bruce 
W. Kauffman who will assume all premium payments thereon. 

8. The firm will move expeditiously to obtain all necessary 
Bank consents to the above transactions, which are ar- 
precondition to its implementation. 

9. Should Bruce W. Kauffman die during the term of this 
agreement, or during the term of the annuity, and if he 
is survived by his spouse, the payments (except for those 
due under paragraph 5 above, which shall continue to be 
paid without diminution) shall continue at one-half of 
the previous sum, with any reduction in payment applied 
to the retirement income portion of the payment. Any 
annuity payment not made to Bruce W. Kauffman or his 
spouse shall be made to the law firm. 

10. In the event that at any time during the ten years 
following his retirement, Bruce W. Kauffman resigns his 
judicial appointment and resumes the practice of law in 
competition with the law firm within a radius of 150 
miles from the firm's principal office in Philadelphia, 
then this retirement program shall terminate and no 
further retirement income payments shall be due or 
payable hereunder or under the annuity. Any remaining 
annuity payments shall be made to the law firm. 

11. It is the intent of the parties that Bruce W. Kauffman 
not recognize any taxable income on account of the 
annuity unless and until he receives payments in years 6 
through 10 and that the law firm not currently deduct any 
payments to fund the annuity. Should Bruce W. Kauffman 
be taxed currently on said amounts or on the value of 
the annuity prior to the time it is paid, the firm shall 
hold him harmless from such tax consequences by loaning 
him the tax, and paying to him the interest and addition 
to tax, if any, due from him (appropriately grossed up 
for tax consequences) , with the loan to be recovered (up 
to the amount of the tax saved as the annuity payments 
are received) by the firm from the remaining annuity 
payments on a pro rata basis or from any tax refunds that 
may be due to Bruce W. Kauffman from taxes paid on 
receipt of annuity proceeds, or such other appropriate 
arrangement as the parties agree. Bruce W. Kauffman 
shall notify the firm if any such tax claim is made and 
the firm shall have the option to participate in the 
resolution of the issue at its expense. 



130 



Exhibit 2 



ADVISORY AGREEMENT 

THIS AGREEMENT is made on Sg jUt^'^'yV - 1 9 9 S , between 
BRUCE W. KAUFFMAN ( "Kauf fman" ) ; USABARCSHARES , INC . , a 
corporation orgamized under the laws of the Commonwealth of 
Pennsylvania (the "Company"); and PEOPLES THRIFT SAVINGS BANK, a 
state-chartered savings bank organized under the laws of 
Pennsylvania ("the Bank") . The Bank and the Company are referred 
to collectively as the "Companies". 

BACKGROUND 

A. The Company is a registered bank holding company, 
and the Bank is a wholly-owned subsidiary of the Company. 

B. Upon the completion of first closing of the 
initial public offering of Common Shares of the Company described 
in the Prospectus dated July 20, 1995 (the "Closing"), the Bank 
became the successor by merger to Peoples Thrift Interim Bank. 

C. Kauf fman is the Chairman of the Board of the 
Company and the Chairman of the Board of the Bank, and after 
completion of the Closing will continue to be the Chairmam of the 
Board of the successor by merger to the Bank. 

0. Kauf fman has substantial experience in the fields 
in which the Companies expect to operate. The Companies desire 
to compensate Kauffman for his advice and service as Chairman of 
the Board and for certain of his expenses in connection with such 
service, and Kauffman is willing to serve as Chairman of the 
Board under the terms and conditions set forth below. 

NOW THEREFORE, the parties agree as follows, intending 
to be legally bound: 

1. Effective Date . This Agreement shall become 
effective upon completion of the Closing (the "Effective Date"). 

2. Services . The Companies and Kauffman agree that 
Kauffman will- serve the Companies as Chairman of the Board during 
the period from the Effective Date until the day immediately 
preceding the second amniversaury of the Effective Date. 

3. Compensation . As compensation for serving as 
Chairman of the Boaurd as required by this Agreement, Kauffman 
shall be entitled to the following: 

(a) Base Fee . The Companies shall pay to 
Kauffman a fee of One Thousamd Dollars ($1,000.00) each month 



131 



during his service as Chairman of the Board, and a proraced 
amount for each partial month. 

(b) Options . At the Closing the Company shall 
issue to Kauffman options (the "Options") to purchase up to 
Thirty Thousand (30,000) Common Shares under the CSA BancShares, 
Inc. Stock Option Plan (the "Stoc)t Option Plan") . The Ontions 
shall be exercisable at a price of $10.00 per Common Share, and 
shall be exercisable for a period of ten (10) years from the date 
the Options are granted under the Stock Option Plan. 

4. Expenses . The Companies shall reimburse Kauffman 
promptly for reasonable out-of-pocket expenses incurred in 
connection with his providing consulting services hereunder, upon 
receipt of appropriate documentation therefor, up to a total of 
Twelve Thousand Dollars ($12,000.00) for the first twelve months 
of the term of this Agreement and Twelve Thousand Dollars 
($12,000.00) for the second twelve months of the term of this 

Agreement . 

5. Taxes . Kauffman is responsible for paying any and 
all federal, state and local income taxes assessed with respect 
to all money, benefits and other consideration he receives from 
the Companies under this Agreement, to the extent not already 
withheld by the Companies; and the Companies are entitled to 
withhold any tax payments from amounts otherwise due Kauffman to 
the extent required by applicable statutes, rulings or 
regulations. 

6. Miscellaneous. 

(a) Definitions . As used throughout this 
Agreement, the term "Companies" includes USA BancShares, Inc., 
Peoples Thrift Savings Bank and their respective Affiliates and 
all of their respective successors and assigns. 

(b) Qovemina Law . This Agreement shall be 
governed by and construed in accordance with the laws of the 
Commonwealth of Pennsylvamia. 

(c) Modification . This Agreement may not be 
modified orally but only by written agreement signed by Kauffman 
and the Chief Executive Officer or Vice Chairman of both of the 
Companies . 

(d) Notices ■ All notices euid other 
comir.unications required or permitted under this Agreement shall 
be in writing and shall be deemed to have been duly given, made 
and received when delivered (personally, by courier service such 
as Federal Express, or by messenger) or when deposited in the 



-2- 



132 



United States mails, registered or certified mail, postage pre- 
paid, return receipt requested, addressed as set forth below: 

If to the Bank: 

Peoples Thrift Savings Bank 
8 03 E. aermantown Pike 
Norristown, PA 19401 

If to the Company: 

USABancShares , Inc . 

One Penn Square 

3 South 15th Street, Fourth Floor 

Philadelphia, PA 19102 

Attention: Chairman of the Board 

If to Kauffman: 

Dilwcrch, Paxson Kalish & Kauffman 
3200 Mellon Building 
1735 Market Street 
Philadelphia, PA 19103 

Any party may alter the address to which 
communications or copies are to be sent by giving notice of such 
change of address in conformity with the provision of this 
Section for the giving of notice. 

(e) aindir.o Nature of Agreement . This Agreement 
shall be binding upon, and shall inure to the benefit cf the 
Bank, the Company and their respective successors, 
representatives, and assigns and shall be binding upon Kauffman, 
his heirs, executors and legal representatives. 

(f) Savings an d Seoarabilitv. If any provision 
of this Agreement is deemed unlawful or unenforceable by a court 
of competent jurisdiction, the remaining provisions shall 
continue in full force and effect. 



-3- 



133 



(g) Section Haadinae . The aection headings in 
this Agreement are for convenience only; they form no p*rt of 
thie Agreement and shall not affect its interpretation. 

IM WITNESS WHEREOF, the underaigned have executed this 
Agreement the day and year first above written. 



Date 



Wi 






SAVINGS BANK 




'^^'■■^^^y^*.^ 4-CtO 

USABANCSKARS^ INC. 







Brace w. Kaurimaiv ^^ J^ 

Date: ft j r v 4»4r>^ 



134 



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154 



RNANCIAL STATEMENT 

NET WORTH 6/30/97 

Provide a complete, current financial net worth statement which itemizes in detail ail 
assets (including bank accounts, real estate, securities, trusts, investments, and other financial holdings) 
all liabilities (including debts, mortgages, loans, and other financial obligations) of yourself, your spouse, 
and other immediate members of your household. 



ASSETS 


LIABIUTIES 


Cash OD band and in banks 




^7 


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Notes payable to banks-secured 


/ 


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U.S. Government securities - add 
schedule 








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Accounts and notes receivable: 








Accounts and bills due 








Due from relatives and frieods 








Unpaid income tax 








Due from others 








Other unpaid tax and interest 








Doubtful 








Real estate mortgages payable - 
add schedule 








Real estate owned— add schedule 




7 SO 


o oa 


Chattel mortgages and other hens 
payable 








Real estate mortgages receivable 








Other debts-itemize: 








Autos and other personal property 




/I i, 


^oo 


Estimated '97 Income Tax 




/OC 


aoo 


Cash value-hfe insurance 




^7 


o e 


1997 Phila. Real Est. Taj 




¥ 


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Other assets-itemize: 
















Present Value DPK&K R^^e- 


/ 


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Limited Partnership Int. 




37 


B eo 










Retirement Accounts 




«7 X. 


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Total liabilities 


-i 


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USA BancShares Cations 




- 


— 


Net Worth 




('^S 


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Total Assets 


3 


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Total habilities and net worth 


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CONTINGENT LL-LBtLITIES 








GENERAL INEORMATION 








As endorser, comaker or guarantor 








Are any assets pledged? (Add 
schedule.) 1820 Rittenhous< 








On Leases or contracts 








Are you defendant for any suits 
or legal actions? No 








Legal Qaims Legal P.V. 




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Have you ever taken bankruptcy? f^ 








Provision for Federal Income Tax 




3^A 


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Other special debt 

















155 



cash in Banks 

Jefferson BanX $ 11,500 

Prudential Securities Money Market 15.900 

$ 27,400 



Unlisted Securities 
Black Horse Pike Ltd. 1984 
formerly New Jersey Economic Development Bond $ 120,000 



Real Estate Owned 
1820 Rittenhouse Square $ 750,000 



Auto and Other Personal Property 

1990 Jaguar $ 16,500 

Art, Furnishings and Personal Effects 100.000 

$ 116,500 



Life Insurance 
American United Life Insurance Company $ 27,000 



156 



Present Value-Dilworth Paxson Kalish & Kauffman Retirement/Buy Out 
Agreement 

1995. 1996. 1997 Capital Account Due 

The law firm of Dilworth Paxson Kalish & Kauffman has established 
a Judicial Retirement Program for Bruce W. Kauffman. The firm has 
agreed to pay $200,000 per year for five years and purchase a third 
party annuity which will pay $100,000 per year for an additional 
five years. 

In addition to the above payments, the firm is also responsible for 
paying 1995, 1996 and 1997 undistributed profits or capital 
presently in the amount of $61,900. (See paragraph 5 of the 
Judicial Retirement Program for Bruce W. Kauffman.) 

The present value of this income stream, assuming an interest rate 
of 10%, amounts to approximately $1,091,900. 



Limited Partnership Interests 

Avenham Associates 36-3066147 $ 1,000 

Galeria Associates 36-3159827 1,000 

Toftrees Associates-25% 23-2389106 15,000 

Huntington Associates 36-3102841 20. 000 

$ 37,000 



The above Partnerships are substantially involved in the business 
of Real Estate. The equity and value of these Partnerships has been 
estimated. 



157 



Retireme nt Accounts 

IRA Rollover Account dated 12/30/85 $ 140,700 

Dilworth Paxson Retirement Plan 13 6,000 

Dilworth Paxson Retirement Plan 543,100 

Dilworth Paxson 401 (k) Plan 52.600 

$ 872,400 



USA Banc Shares. Inc. 
BWK owns 30,000 Options to purchase 
shares of stock in the Company. The 
Options may be exercised at a price 
of $10.00 per share for a period of 
ten years beginning 11/8/95. 



Provisio n for Income Tax 
Retirement Accounts $ 342,800 



Legal Claims 
Divorce Settlement 

Monthly Payment Payment Total Present Value 

Child Support $ 2,083.33 $ 22,917 $ 21,800 

Alimony 3,664.00 408,536 271,700 

Property Settlement 1,833.33 251.165 149.300 

Total $ 442,800 



The interest rate used was 10% to determine the present value of 
the payment stream. 



158 



Notes Payable to Banks-Secured 
Jefferson Bank ^__iii°lli°° 

yotes Payable to Banks-Un secured 
Jefferson Bank $ 262,500 

Great Lakes Higher Education Corporation 36,800 

$ 299,300 



Notes Pavable-Others 
American United Life Insurance Company 9 27,000 

Dilworth Paxson Kalish & Kauffman 

Retirement Plan ?5,^0Q 

$ 62,600 



159 



SENATE QUESTIONNAIRE FOR JUDICIAL NOMINEE 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

Full name (include any former names used.) 

Full Name 

Richard Alan Lazzara 

Address: List current place of residence and office 
address (es) . 



Office Address 

Second District Court of Appeal 

800 East Twiggs Street 

Suite 600 

Tampa, Florida 33602 

3. Date and place of birth. 

Date of Birth 
December 17, 1945 

Place of Birth 
Tampa, Florida 

4. Marital Status (include maiden name of wife, or 
husband's name). List spouse's occupation, employer's 
name and business address (es). 

Name of Spouse 

Celeste Lindler Lazzara. 

Spouse's Occupation 
Admissions Counselor 

Spouse's Employer and Business Address 
Office of Admissions 
University of South Florida 
4202 East Fowler Avenue 
Tampa, Florida 33620 

5. Education : List each college and law school you have 
attended, including dates of attendance, degrees 
received, and dates degree were granted. 



160 



College Attended 

Loyola University of the South 

New Orleans, Louisiana 

Dates of Attendance 

September, 1963 - May, 1967 (inclusive) 

Degree Awarded 

Bachelor of Arts in History 

Date Degree Granted 
May 30, 1967 

Law School Attended 

University of Florida College of Law 

Gainesville, Florida 

Dates of Attendance 

September, 1967 - June, 1970 (inclusive) 

Degree Awarded 
Juris Doctor 

Date Degree Granted 
June 13, 197 

Employment Record : List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and 
organizations, nonprofit or otherwise, including firms, 
with which you were connected as an officer, director, 
partner, proprietor, or employee since graduation from 
college . 

1967 : 

Lazzara Oil Company (family company) 
St. Petersburg, Florida 
General laborer 
June - August 

1968 : 

University of Florida 
Division of Housing 
Gainesville, Florida 
Dormitory Resident Assistant 
January - June 



-2- 



161 



Gibbons, Tucker, McEwen, Smith, Cofer, and 
Taub, P. A. 
Tampa, Florida 
Law Clerk 
June - August 

University of Florida 
Division of Housing 
Gainesville, Florida 
Dormitory Resident Assistant 
September - December 

1969 : 

University of Florida 
Division of Housing 
Gainesville, Florida 
Dormitory Resident Assistant 
January - June 

1970 : 

Office of the Hillsborough County 

Solicitor 

Tampa, Florida 

Law Clerk 

June - November 

Office of the Hillsborough County 

Solicitor 

Tampa, Florida 

Assistant County Solicitor 

November - December 

1971 - 1972 : 

Office of the Hillsborough County 

Solicitor 

Tampa, Florida 

Assistant County Solicitor 

1973 : 

Office of the Hillsborough County 
State Attorney 
Tampa, Florida 
Assistant State Attorney 
January - April 



-3- 



162 



Levine, Freedman, and Hirsch, P. A. 
Tampa, Florida 
Associate Attorney 
April - December 

1974 : 

Levine, Freedman, and Hirsch, P. A. 
Tampa, Florida 
Associate Attorney 

1975 : 

Levine, Freedman, and Hirsch, P. A. 
Tampa, Florida 
Associate Attorney 
January - April 

Law Offices of Richard A. Lazzara 
Tampa, Florida 
Sole Practitioner 
April - December 

1976 - 1986 : 

Law Offices of Richard A. Lazzara 
Tampa, Florida 
Sole Practitioner 

1987 : 

State of Florida 

County Judge - Hillsborough County 

Tampa, Florida 

1988 - 1992: 



State of Florida 

Circuit Judge - Thirteenth Judicial Circuit 

Tampa, Florida 

1993 : 

State of Florida 

Circuit Judge - Thirteenth Judicial Circuit 

Tampa, Florida 

January - November 



-4- 



163 



state of Florida 

Appellate Judge - Second District Court of 

Appeal 

Tampa, Florida 

December 

1994 - Present: 

State of Florida 

Appellate Judge - Second District Court of 

Appeal 

Tampa, Florida 

Military Service : Have you had any military service? 
If so, give particulars, including the dates, branch of 
service, rank or rate, serial number and type of 
discharge received. 

No. 

Honors and Awards : List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that 
you believe would be of interest to the Committee. 

Loyola University : 

1) Recipient of a full two-year academic 
scholarship for junior and senior years 

2) President of the College of Arts and 
Sciences in senior year 

3) Alpha Sigma Nu Honor Society 

4) Delta Epsilon Sigma National Honor Society 

5) Who's Who in American Colleges and 
Universities for 1966-1967 

6) National Blue Key Honor Fraternity 

7) Graduated magna cum laude 

University of Florida College of Law : 

1) Recipient of the book, American 
Jurisprudence. 2d. Corporations , awarded to 
the law student who attains the highest grade 
in the course on corporations 

2) Attorney General and Chancellor of the 
Honor Court 

3) Florida Blue Key Honor Fraternity 

4) Omicron Delta Kappa National Honor 
Fraternity 

Judicial Honors: 

1) Highest approval rating of Hillsborough 

-5- 



164 



County judicial candidates in a poll 
conducted by the Hillsborough County Bar 
Association in 1986 (Source - The Tampa 
Tribune, August 22, 1986) 

2) Highest approval rating of 
Hillsborough County county court judges in a 
poll conducted by the Hillsborough County Bar 
Association in 1987 (Source - The Tampa 
Tribune, June 29, 1987) 

3) Highest approval rating of Hillsborough 
County circuit court judges in a poll 
conducted by the Hillsborough County Bar 
Association in 1993 (Sources - The Tampa 
Tribune, October 9, 1993, and The St. 
Petersburg Times, October 9, 1993) 

4) Highest approval rating of Second District 
Court of Appeal judges in a poll conducted by 
Hillsborough County Bar Association in 1995 

(Sources - Warfield's Tampa Bay Review, 
September 29, 1995, and La Gaceta trilingual 
newspaper, October 13, 1995) 

5) Recipient of the Robert S. Patton Award 
for most outstanding jurist for the year 
1991-1992 awarded by the Young Lawyers 
Section of the Hillsborough County Bar 
Association 

6) Recipient of the Ybor City Optimist Club's 
1993 "Respect for the Law" award 

Bar Associations : List all bar associations, legal or 
judicial-related committees or conferences of which you 
are or have been a member and give the titles and dates 
of any offices which you have held in such groups. 

1) American Bar Association 

2) The Florida Bar; Member of Thirteenth 
Judicial Circuit Grievance Committee 13-D 
(1985-1986) 

3) Hillsborough County Bar Association 
^) American Judicature Society 

5) Ferguson-White Inn of Court; President 
(1995-1996) 

6) Conference of County Court Judges 

7) Conference of Circuit Court Judges 

8) Conference of Appellate Court Judges; 
Member of Education Committee (1994) 



165 



10. other Memberships : List all organizations to which you 
belong that are active in lobbying before public 
bodies. Please list all other organizations to which 
you belong. 

Lobbying Orga nizations 
None 

Other Organizations 
Order, Sons of Italy 
Unita Lodge 2015 
Tampa, Florida 
By-laws attached 

11. Court Admissions : List all courts in which you have 
been admitted to practice, with dates of admission and 
lapses if any such memberships lapsed. Please explain 
the reason for any lapse of membership. Give the same 
information for administrative bodies which require 
special admission to practice. 

When admitted to The Florida Bar on November 
13, 1970, I was authorized to practice in all 
of the trial and appellate courts of the 
State of Florida - County Courts, Circuit 
Courts, District Courts of Appeal, and the 
Florida Supreme Court. 

United States District Court, Middle District 
of Florida - admitted January, 1973 

United States Court of Appeals for the Fifth 
Circuit - admitted January, 1974. 

United States Court of Appeals for the 
Eleventh Circuit - admitted March, 1983 

12. Published Writings : List the titles, publishers, and 
dates of books, articles, reports, or other published 
material you have written or edited. Please supply one 
copy of all published material not readily available to 
the Committee. Also, please supply a copy of all 
speeches by you on issues involving constitutional law 
or legal policy. If there were press reports about the 
speech, and they are readily available to you, please 
supply them. 



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166 



Publishe d Writings: 

1) Preparation and Education: The C ardinal 
Rules of the Trial Lawyer . This article was 
published in the August/September, 1990 
edition of The Bulletin of the Hillsborough 
County Bar Association. A copy is attached. 



2) DUI Manslaughter Trial - A Trial Judge's 
Perspective . This material was published for 
use in connection with an advanced continuing 
legal education seminar presented by the 
Academy of Florida Trial Lawyers on October 
22, 1991, in Orlando, Florida. A copy is 
attached. 

3) Legal Writing From a Trial Judge's 
Perspective . This material was published for 
use in connection with a continuing legal 
education seminar presented by the 
Hillsborough County Bar Association on 
October 22, 1992, in Tampa, Florida. A copy 
is attached. 

4) Motions to Suppre ss: The Riaht Wav. This 
material was published for use in connection 
with a continuing legal education seminar 
presented by the Pinellas County Criminal 
Defense Lawyers Association on October 22-23, 
1993, in St. Petersburg Beach, Florida. It 
was later republished for use in connection 
with a continuing legal education seminar 
presented by Stetson College of Law on 
September 29, 1995, in Tampa, Florida. A 
copy is attached. 

Speeches: 

Although I have given speeches regarding the 
legal system before various groups, all of 
them were of an informal nature and did not 
relate to issues of constitutional law or 
legal policy. Furthermore, I did not speak 
from a written text, and any notes I may have 
used were discarded. Finally, to my 
knowledge, none of these speaking events were 
reported by the news media. 



167 



13, Health : What is the present state of your health? 
List the date of your last physical examination. 

State of Health 
Excellent 

Date of Last Physical Examination 
January 30, 1996 



14. Judicial Office : State (chronologically) any judicial 
offices you have held, whether such position was 
elected or appointed, and a description of the 
jurisdiction of each such court. 

1) Current Judicial Office 

a) Court 

Second District Court of Appeal of State of 
Florida; Appellate Judge 

b) Elected or Appointed 

Appointed by Florida Governor Lawton Chiles 
in November of 1993; retained by the voters 
residing within the second district court of 
appeal for a six-year term commencing January 
7, 1997 at the general election held on 
November 5, 1996. 

c) Periods of Service 
December 1, 1993 to present 

d) Jurisdiction 

Primary jurisdiction involves resolving civil 
and criminal cases appealed from the circuit 
courts of the fourteen counties located 
within the Second District. The court also 
possesses an "All Writs" jurisdiction. 

2) Prior J udicial Offices 

a) Court 

Circuit Court of Thirteenth Judicial Circuit 
of State of Florida; Circuit Judge 

b) Elected or Appointed 

Appointed by Florida Governor Bob Martinez in 
November of 1987; stood for election without 



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opposition for a six-year term in September 
of 1988. 

c) Periods of Service 

January 1, 1988 through November 30, 1993 

d) Jurisdiction 

As a circuit judge, I sat for three and one- 
half years in a criminal division presiding 
over felony cases and two and one-half years 
in a civil division presiding over civil 
cases involving mortgage foreclosures, 
medical and legal malpractice claims, 
personal injury and products liability cases, 
and contractual and commercial disputes. I 
also had jurisdiction over general civil 
cases in which the amount in controversy 
exceeded $15,000. My jurisdiction also 
included resolving civil and criminal appeals 
from the county court, as well as issuing 
writs of certiorari and mandamus to 
governmental boards and agencies. 

a) Couct 

County Court of Hillsborough County, Florida; 
County Judge 

b) Elected or Appointed 

In September of 1986, I was elected in a 
county-wide, non-partisan election to a four 
year term. 

c) Periods of Service 

January 1, 1987 through December 31, 1987 

d) Jurisdiction 

As a county court judge, I sat for six months 
in a criminal division where my jurisdiction 
was limited to presiding over misdemeanor and 
criminal traffic offenses and six months in a 
civil division where my jurisdiction was 
limited to presiding over civil disputes in 
which the amount in controversy did not 
exceed $5,000, landlord-tenant disputes and 
civil traffic cases. 



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15. Citations : If you are or have been a judge, provide: 

(1) citations for the ten most significant opinions you 
have written; (2) a short summary of and citations for 
all appellate opinions where your decisions were 
reversed or where your judgment was affirmed with 
significant criticism of your substantive or procedural 
rulings; and (3) citations for significant opinions on 
federal or state constitutional issues, together with 
the citation to appellate court rulings on such 
opinions. If any of the opinions listed were not 
officially reported, please provide copies of the 
opinions . 

(1) Citations of Significant Opinions : 

1. Berry v. State . 636 So. 2d 555 (Fla. 2d 
DCA) , approved in part, disapproved in part . 
647 So. 2d 830 (Fla. 1994) . 

2. Bader v. Bader . 639 So. 2d 122 (Fla. 2d 
DCA) (en banc), review denied . 649 So. 2d 232 
(Fla. 1994) . 

3. Stephenson v. State . 640 So. 2d 117 (Fla. 
2d DCA 1994), approved . 655 So. 2d 86 (Fla. 
1995) . 

4. Kazakoff v. State . 642 So. 2d 596 (Fla. 2d 
DCA 1994) (en banc) . 

5. Hamilton v. State . 645 So. 2d 555 (Fla. 2d 
DCA 1994), aff'd in part, rev'd in part . 660 
So. 2d 1038 (Fla. 1995) . 

6. Snyder v. Douglas . 647 So. 2d 275 (Fla. 2d DCA 
1994) . 

7. Haines City Development v. Diggs . 647 So. 
2d 855 (Fla. 2d DCA 1994), approved . 658 So. 
2d 523 (Fla, 1995) . 

8. State Farm Mutual Automobile Ins urance 
Company v. Hassen . 650 So. 2d 128 (Fla. 2d 
DCA 1995), approved . 674 So. 2d 106 (Fla. 
1996) . 

9. Humana o f Florida. Inc. v. McKauahan . 652 
So. 2d 852 (Fla. 2d DCA 1995), approved . 668 
So. 2d 974 (Fla. 1996) . 

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170 



10. Bentley v. Walker . 660 So. 2d 313 (Fla. 
2d DCA 1995), approved . 678 So. 2d 1265 (Fla. 
1996) . 

(2) Citations of Reversals and Affirmances 
with Criticism : 

1. Boffo V. State . 543 So. 2d 435 (Fla. 2d 
DCA 1989) . 

Although my judgment revoking the defendant's 
violation of probation was affirmed, the 
sentence I imposed was reversed and the case 
was remanded for imposition of a sentence 
under the youthful offender statute. 

2. Parsley v. State . 553 So. 2d 730 (Fla. 2d DCA 
1989) . 

My denial of a motion to dismiss the charge 
of racketeering was reversed and the judgment 
as to this charge was vacated. 

3. Knight v. State . 556 So. 2d 801 (Fla. 2d DCA 
1990) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded for 
resentencing. 

4. Phelps V. State . 561 So. 2d 32 (Fla. 2d DCA 
1990) . 

My denial of the defendant's motion to 
correct an illegal sentence based on an award 
of improper jail credit was reversed and the 
case was remanded for further consideration. 

5. Harris v. State . 565 So. 2d 897 (Fla. 2d DCA 
1990) . 

My denial of the defendant's motion for 
additional jail credit was reversed and the 
case was remanded for further consideration. 



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171 



6. Way V. Duaqer . 568 So. 2d 1263 (Fla. 1990), 

My denial of the defendant's motion to vacate 
his death sentence was reversed and the case 
was remanded for another penalty phase 
hearing. In all other respects I was 
affirmed. 

7. Helmick v. State . 569 So. 2d 869 (Fia. 2d DCA 
1990) . 

Although the defendant's convictions were 
affirmed, the court reversed the sentences 
imposed and remanded for resentencing. 

8. Parlcer v. State . 570 So. 2d 1115 (Fla. 2d DCA 
1990) . 

My imposition of a minimum mandatory sentence 
as to one offense was vacated. In all other 
respects I was affirmed. 

9. Edwards v. State . 570 So. 2d 1116 (Fla. 2d DCA 

1990) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
stricken. 

10. Nichols V. State . 571 So. 2d 121 (Fla. 2d DCA 
1990) . 

My denial of the defendant's motion for post 
conviction relief was reversed and the case 
was remanded for further proceedings. 

11. Walker v. State . 572 So. 2d 1028 (Fla. 2d DCA 

1991) . 

My denial of the defendant's motion for post 
conviction relief was reversed and the case 
was remanded for further proceedings. 

12. Martinez v. State . 575 So. 2d 1376 (Fla. 2d 
DCA 1991) . 

My denial of the defendant's motion for post 
conviction relief was reversed and the case 
was remanded for further proceedings. 

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172 



Following remand another appeal was taken and 
my ruling was affirmed. Martinez v. State > 
583 So.2d 680 (Fla. 2d DCA 1991). 

13. City of Tampa v. Redner . 576 So. 2d 339 
(Fla. 2d DCA 1991) . 

The court reversed my ruling and directed 
that I reconsider the case using the correct 
municipal ordinance of the City of Tampa. 
Following remand another appeal was taken and 
the court affirmed my second ruling. City of 
Tampa v. Redner . 597 So. 2d 305 (Fla. 2d DCA 
1991) . 

14. Johnson v. State . 577 So. 2d 725 (Fla. 2d DCA 
1991) . 

My denial of the defendant's motion to 
mitigate his sentence was reversed and the 
case was remanded for further proceedings . 

15. Matthews v. State . 578 So. 2d 51 (Fla. 2d DCA 
1991) . 

My written sentences were reversed and 
remanded to conform to my oral pronouncements 
at time of sentencing. In all other respects 
the defendant's convictions were affirmed. 

16. Busier v. State . 578 So. 2d 872 (Fla. 2d DCA 
1991) . 

The court reversed my order denying the 
defendant's motion to suppress evidence 
deciding that there was no founded suspicion 
to justify the police officer's stop of the 
defendant . 

17. Morgan v. State . 580 So. 2d 176 (Fla. 2d DCA 
1991) . 

My imposition of a sentence under the 
habitual felony offender statute was reversed 
and the case was remanded for resentencing. 



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173 



18. Blount V. State . 581 So. 2d 604 (Fla. 2d DCA 
1991) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded for 
resentencing. 

19. Gonzalez v. State . 581 So. 2d 648 (Fla. 2d DCA 
1991) . 

Although the court affirmed my departure 
sentencing order which exceeded the 
sentencing guidelines based on one reason, it 
found that two of my reasons for departure 
were invalid. 

20. Bur key v. State . 582 So. 2d 1252 (Fla. 2d DCA 
1991) . 

My written sentences were reversed and 
remanded to conform to my oral pronouncements 
at time of sentencing. In all other respects 
the defendant's convictions were affirmed. 

21. Jancar v. State . 585 So. 2d 1200 (Fla. 2d DCA 
1991) . 

Although the judgment and sentence were 
affirmed, the court remanded for the 
allocation of the proper amount of jail 
credit to be awarded to the defendant. 

22. State v. Milbro . 586 So. 2d 1303 (Fla. 2d DCA 
1991) . 

The court reversed my dismissal of the charge 
of solicitation to deliver a controlled 
substance and remanded the case for further 
proceedings . 

23. Jackson v. State . 590 So. 2d 1070 (Fla. 2d DCA 
1991) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded for 
resentencing. 



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174 



24. State v. Tanskley . 590 So. 2d 1111 (Fla. 2d 
DCA 1991) . 

Although the court affirmed the defendant's 
convictions for two offenses, it remanded for 
the correction of sentence as to one of the 
offenses . 

25. Coleman v. State . 592 So. 2d 300 (Fla. 2d DCA 
1991) . 

The defendant was convicted of burglary and 
delivery of cocaine. The court reversed the 
burglary conviction, affirmed the drug 
conviction, and remanded for resentencing on 
the drug conviction using a corrected 
guideline sentencing scoresheet that deleted 
the burglary conviction. 

26. Dumas v. State . 592 So. 2d 383 (Fla. 2d DCA 
1992) . 

Although the defendant's convictions were 
affirmed, my departure order imposing a 
sentence in excess of the sentencing 
guidelines was reversed and the case was 
remanded for resentencing. 

27. State v. Bamber , 592 So. 2d 1129 (Fla. 2d DCA 
1991) . 

Although the court affirmed my granting of 
the defendant's motion to suppress evidence, 
it stated that I should have followed the 
holding of another District Court of Appeal. 
However, in affirming my ruling, the court 
certified conflict to the Florida Supreme 
Court with this other court's ruling. The 
Florida Supreme Court ultimately affirmed my 
suppression of the evidence. State v. 
Bamber . 630 So. 2d 1048 (Fla. 1994) . 

28. Mathews v. State , 596 So. 2d 79 (Fla. 2d DCA 
1991) . 

The court reversed my denial of the 
defendant's motion to correct illegal 
sentence and remanded the case for further 
proceedings . 

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175 



29. Smith v. State . 599 So.Zd 265 (Fla. 2d DCA 
1992) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded for 
resentencing. 

30. Lehman v. State . 602 So. 2d 610 (Fla. 2d DCA 
1992) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded with 
directions to discharge the defendant from 
any further sentence. 

31. Jasperson v. State . 603 So. 2d 144 (Fla. 2d 
DCA 1992) . 

The court reversed the sentence imposed and 
remanded for resentencing using a proper 
guideline sentencing scoresheet. 

32. Davis V. State . 605 So. 2d 561 (Fla. 2d DCA 
1992) . 

The court reversed my denial of the 
defendant's motion to suppress evidence on 
the basis that the stop of the defendant by 
the police officer was pretextual in nature. 

33. Love V. State . 606 So. 2d 755 (Fla. 2d DCA 
1992) . 

The court reversed my ruling that the 
defendant's community control should be 
revoked and remanded the case for 
reinstatement of the original sentence of 
community control. 

34. Rodriguez v. State . 610 So. 2d 476 (Fla. 2d 
DCA 1992) . 

The court reversed my sentence on the basis 
that it exceeded the sentence called for in a 
plea agreement. It remanded the case for 
further proceedings including giving the 



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176 



defendant an opportunity to withdraw his plea 
of guilty. 

35. Reber v. State . 611 So. 2d 91 (Fla. 2d 
DCA 1992) . 

The court remanded the case for the 
correction of the written judgment. It also 
struck a cost assessment. 

36. Dorsey v. State . 613 So. 2d 1368 (Fla. 2d DCA 
1993) . 

The court reversed the defendant's 
racketeering conviction. It also reversed 
the defendant's petit theft conviction 
finding that I should not have allowed 
certain photographs into evidence. However, 
the court did affirm the defendant's 
convictions for possession of cocaine, 
possession of marijuana, and grand theft of a 
firearm. 

37. Bryant v. State . 614 So. 2d 688 (Fla. 2d 
DCA 1993) . 

Although the court affirmed the convictions, 
it reversed one special condition of 
probation because it was not orally 
pronounced. 

38. Holliday v. Citv of Tamoa . 619 So. 2d 
244 (Fla. 1993) . 

In Holliday v. City of Tamoa . 586 So. 2d 64 
(Fla. 2d DCA 1991), the Second District Court 
of Appeal upheld my decision to affirm Mr. 
Holliday' s conviction for loitering under a 
Tampa city ordinance. The Florida Supreme 
Court, however, disagreed and held the 
ordinance was facially unconstitutional. 

39. Bailev v. Hillsborough County . 619 So. 
2d 346 (Fla. 2d DCA 1993) . 

The court reversed my dismissal of a civil 
complaint with prejudice and remanded the 
case for the plaintiff to be able to file an 
amended complaint. 

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177 



40. Guerra v. State > 626 So. 2d 706 (Fla. 2cl 
DCA 1993) . 

My departure order imposing a sentence in 
excess of the sentencing guidelines was 
reversed and the case was remanded for 
resentencing. 

41. Charlie Brown's of Tampa. Inc. v. Cook . 
630 So. 2d 1158 (Fla. 2d DCA 1994) . 

The court reversed my order setting aside a 
final judgment and remanded with instructions 
to reinstate the judgment. 

42. Newsome v. Sinaletary . 637 So. 2d 9 
(Fla. 2d DCA 1994) . 

The court reversed my order dismissing a 
complaint for lack of jurisdiction and 
remanded for further proceedings. 

43. State v. Berry . 647 So. 2d 830 (Fla. 
1994) . 

Although the Florida Supreme Court affirmed 
the result reached in the opinion I authored 
in Berry v. State . 636 So. 2d 555 (Fla. 2d 
DCA 1994), it disagreed with the assessment 
that a juvenile could never waive his or her 
right to forego certain statutory safeguards 
before being sentenced as an adult. 

44. State v. Jackson . 650 So. 2d 24 (Fla. 
1995) . 

Although the Florida Supreme Court agreed 
with the result reached in the opinion I 
authored in State v. Jackson . 636 So. 2d 1372 
(Fla. 2d DCA 1994), it disagreed with my 
substantive reasoning that information 
transmitted to a digital display pager was an 
electronic communication. Instead, the court 
held that such information was a wire 
communication. 



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178 



45. State v. Hamilton. 660 So. 2d 1038 (Fla. 
1995) , 

Although the Florida Supreme Court agreed 
with my substantive analysis of what 
constitutes the "curtilage" under Florida's 
burglary statute in the opinion I authored in 
Hamilton v. State . 645 So. 2d 555 (Fla. 2d 
DCA 1994), it disagreed with remanding the 
case for a new trial, determining instead 
that the evidence was insufficient to prove 
guilt . 

46. Florida Power & Light Company v. Polackwich. 677 
So. 2d 880 (2d DCA Fla. 1996) . 

Although the court reversed and remanded for 
a new trial because it determined that two of 
my rulings were erroneous, it pointed out 
that at the time I made these rulings they 
were consistent with the law in effect at the 
time of trial. After the trial, however, the 
law had changed by virtue of two intervening 
United States Supreme Court opinions which 
required the appellate court to reverse and 
grant a new trial. 

47. State v. Montague . 682 So. 2d 1085 (Fla. 1996). 

In State v. Montag ue. 656 So. 2d 508 (Fla. 2d DCA 
1995) , I certified a question to the Florida Supreme 
Court regarding whether a recent Florida Supreme Court 
opinion had overruled prior precedent of the Second 
District Court of Appeal in the area of preserving a 
sentencing error for review. Although the Florida 
Supreme Court acknowledged that its prior opinion did 
not expressly overrule the precedent of my court 
upon which I relied in my opinion, it did hold that 
this opinion tacitly disapproved this precedent. 
The supreme court, therefore, answered the question 
in the affirmative and reversed my decision. 

(3) Citations of Significant Constitutional 
Opinions : 

1. State Farm Mutua l Automobile Insurance 
Company v. Hassen . 650 So. 2d 128 (Fla. 2d 



■20- 



179 



DCA 1995), approved . 674 So. 2ci 106 (Fla. 
1996) . 

2. Walker v. Bentley . 660 So. 2cl 313 (Fla. 
2d DCA 1995), approved . 678 So. 2d 1265 (Fla. 
1996) . 

3. State V. Barnes . 21 Fla. L. Weelcly D2515 (Fla. 2d 
DCA Nov. 27, 1996) . 

16. Public Office : State (chronologically) any public 
offices you have held, other than judicial offices, 
including the terms of service and whether such 
positions were elected or appointed. State 

(chronologically) any unsuccessful candidacies for 
elective public office. 

None . 

17. Legal Career : 

a. Describe chronologically your law practice and 
experience after graduation from law school 
including: 

1. whether you served as clerk to a judge, 
and if so, the name of the judge, the court, 
and the date of the period you were a clerk; 

I did not serve as a clerk to a 
judge. 

2. whether you practiced alone, and if so, 
the addresses and dates; 

From April of 1975 until December 
of 1986, I was a sole practitioner 
at the following addresses: 

April of 1975 - December of 1977 
725 East Kennedy Boulevard 
Tampa, Florida 33602 

January of 1978 - February of 1980 ' 

202 South Governor Street 
Tampa, Florida 33602 



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180 



March of 1980 - June of 1985 
610 West Deleon Street 
Tampa, Florida 33606 

July of 1985 - December of 1986 
606 East Madison Street 
Tampa, Florida 33602 

3. the dates, names and addresses of law 
firms or offices, companies, or governmental 
agencies with which you have been connected, 
and the nature of your connection with each; 



June of 1970 - November of 1970 

Office of the Hillsborough County 

Solicitor 

801 East Kennedy Boulevard 

Fifth Floor 

Tampa, Florida 33602 

Law Clerk 

November of 1970 - Dece mber of 1972 

Office of the Hillsborough County 

Solicitor 

801 East Kennedy Boulevard 

Fifth Floor 

Tampa, Florida 33602 

Assistant County Solicitor 

January of 1973 - April of 1973 
Office of the State Attorney 
801 East Kennedy Boulevard 
Fifth Floor 
Tampa, Florida 33602 
Assistant State Attorney 

April of 1973 - April of 1975 
Levine, Freedman, and Hirsch, P. A. 
725 East Kennedy Boulevard 
Tampa, Florida 33602 
Associate Attorney 

January of 1986 - June of 1987 

Hillsborough County Court Judge 

Criminal Division 

801 East Twiggs Street 

Tampa, Florida 33602 



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181 



July of 1987 - December of 1987 
Hillsborough County Court Judge 
800 East Kennedy Boulevard 
Tampa, Florida 33602 

January o f 1988 - July of 1991 

Hillsborough County Circuit Court 

Judge 

Criminal Division 

800 East Kennedy Boulevard 
Tampa, Florida 33602 

August of 1991 - N ovember of 1993 

Hillsborough County Circuit Court 

Judge 

Civil Division 

419 Pierce Street 

Tampa, Florida 33602 

December of 1993 - Present 
Second District Court of Appeal 
Judge 

801 East Twiggs Street 
Tampa, Florida 33602 



b. 1. What has been the general character of 
your law practice, dividing it into periods 
with dates if its character has changed over 
the years? 

The general character of my 
practice, which remained constant 
over the years, involved extensive 
litigation in the areas of criminal 
law, commercial law, and family 
law. I also handled appellate 
matters in these same areas of the 
law. 

2. Describe your typical former clients, 
and mention the areas, if any, in which you 
have specialized. 

My former clients ccime from all 
walks of life - single parents, 
educators, business people, law 
enforcement officers, public 
officials, and members of the 

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182 



general work force. Although I 
considered myself a general 
litigator, my area of specialty was 
criminal defense. 

1. Did you appear in court frequently, 
occasionally, or not at all? If the 
frequency of your appearances in court 
varied, describe each such variance, giving 
dates . 

While a practicing attorney, I 
appeared in court on a regular 
basis which did not significantly 
vary over the years. 

2. What percentage of these appearances was 
in: 

(a) federal courts - 30?. 

(b) state courts of record - 70 % 

(c) other courts - 0?, 

3. What percentage of your litigation was: 

(a) civil - 30% 

(b) criminal - 70 % 

4. State the number of cases in courts of 
record you tried to verdict or judgment 
(rather than settled), indicating whether 
your were sole counsel, chief counsel, or 
associate counsel. 

Sole Counsel 
145 

Chief Counsel 
5 

Associate Counsel 
10 



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183 

5. What percentage of these trials were: 

(a) jury - 60% 

(b) non-jury - 40% 

Litigation : Describe the ten most significant 
litigated matters which you personally handled. Give 
the citations, if the cases were reported, and the 
docket number and date if unreported. Give a capsule 
summary of the substance of each case. Identify the 
party or parties whom you represented; describe in 
detail the nature of your participation in the 
litigation and the final disposition of the case. Also 
state as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or 
judges before whom the case was litigated; and 

(c) The individual name, addresses, and telephone 
numbers of co-counsel and of principal counsel for 
each of the other parties. 

1) citgticq Qt Case 

Autgmatic Tru ck ^ Trgi lgr Wggh 
Centers. Inc. v. Eastamp. Inc. , 320 
So. 2d 7 (Fla. 2d DCA 1975) . 

Capsule Summary of Case 

This case involved a lawsuit filed 
by my client, a secured creditor, 
seeking to recover a deficiency 
judgment following a foreclosure 
sale involving an automatic truck 
and trailer washer. The trial 
court granted summary judgment 
against the client and ruled that 
its rights were governed 
exclusively by the provisions of 
Article 9 of the Uniform Commercial 
Code relating to secured creditors 
and that it was not entitled to the 
benefits of Article 6 of the Code 
which protected unsecured 
creditors. The appellate court 
disagreed, reversed the entry of 
summary judgment, and remanded for 
further proceedings. To the best 

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184 



of my recollection, the case was 
settled on remand. 

Party Represented 

Automatic Truck & Trailer Wash 
Centers, Inc. 

Nature of Participation in Case 

I was actively involved in 
litigating the case at the trial 
court level in terms of drafting 
pleadings, researching the law, 
participating in pre-trial 
depositions, and attending and 
arguing motions at hearings. I was 
equally active at the appellate 
stage in terms of undertaking legal 
research and preparing and drafting 
the briefs. I do not recall, 
however, whether I or my co-counsel 
argued the case to the appellate 
court . 

Final Disposition of Case 

It is my recollection that after 
the appellate court reversed and 
remanded the case the parties then 
settled it. 

Dates of Representation 

Fall of 1974 

Name of Court/Judge 

Circuit Court of Thirteenth 

Judicial Circuit of State of 

Florida 

Circuit Judge Laurence I . Goodrich 

(retired) (now in private practice) 

Name/Address/Phone Numbers of Co- 
Counsel and Counsel of Other 
Parties 



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185 



Co-Counsel 

Mr. Michael J. Freedman 
300 East Madison Street 
Tampa, Florida 33602 
(813) 229-6925 

Counsel nf OthPr P^rti^'? 

Raymond C. Farfante, Jr. 
(deceased) 



Mr. John P. Griffin 

15819 Dawson Ridge Road N.W. 

Tampa, Florida 33647 

(813) 979-9831 

Mr. Harold H. Griffin 
(deceased) 

Mr. Jan G. Halisky 
507 South Prospect Avenue 
Clearwater, Florida 34616 
(813) 461-4234 

2) Citation of Case 

United States v. Myerc;. 550 f. 2d 
1036 (5th Cir. 1977), 42 ALR Fed. 
855, appeal after remand. 572 F. 2d 
506 (5th Cir.), cert, denied . 439 
U.S. 487, 99 S. Ct. 147, 58 L. Ed. 
2d 149 (1978) 

Capsule Summar y of Case 

Mr. Myers was indicted for robbing 
a federally-insured bank, and I was 
court-appointed to represent him. 
He raised an alibi defense. His 
first trial ended in a mistrial 
after the jury could not reach a 
unanimous verdict. His second 
trial resulted in a jury verdict of 
guilt. On appeal, the Fifth 
Circuit reversed and remanded for a 
new trial. The new trial resulted 
in another jury verdict of guilt 
which the Fifth Circuit affirmed. 

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186 

Party Re presented 

Mr. Larry Allen Myers 

Nature of Participation in Case 

I was court-appointed to represent 
Mr. Myers at trial and on appeal. 
In that capacity, I prepared and 
filed various pre-trial motions, 
undertook discovery, tried his case 
to a jury on three occasions, 
prepared and filed appellate briefs 
on two occasions, and argued his 
case on appeal on one occasion. 

Final Dispositi on of Case 

Following the second conviction, 
Mr. Myers was sentenced to ten 
years imprisonment. The conviction 
and sentence were affirmed by the 
Fifth Circuit, and the United 
States Supreme Court later denied 
certiorari review. 

Dates of Repres entation 

1975-1978 

Name of Court/Judge 

United States District Court, 

Middle District of Florida, Tampa 

Division 

United States District Judge Ben 

Krentzman (retired) 

Name/Address/Phone Number of Co- 
Counsel and Counsel of Other Partv 

Co-Counsel 

None 

Counsel of Other Partv 

Mr. John L. Briggs 
(I have been advised by a former 
law partner of Mr. Briggs that he 

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187 



is now in a nursing home in the 
Jacksonville, Florida area 
suffering from Alzheimer's 
disease. ) 

Mr. Terry Smiljanich 

300 First Avenue South 

Suite 500 

St. Petersburg, Florida 33701 

(813) 823-3837 

3) Citation of Case 

Johnson v. Farris . 469 So. 2d 221 
(Fla. 2d DCA 1985) 

Capsule Summary of Case 

I filed a petition to modify the 
custody provisions of a final 
judgment of dissolution of marriage 
on behalf of the former husband in 
which he sought custody of his 
minor child. The trial judge 
dismissed the petition on the basis 
that he did not have jurisdiction 
under Florida's Uniform Child 
Custody Jurisdiction Act. This 
ruling was reversed on appeal, and 
the case was remanded for further 
proceedings. On remand, the case 
was settled by the parties with the 
former husband obtaining more 
extensive visitation rights. 

Party Represented 

Mr. Cecil E. Johnson 

Nature of Participation in Case 

I prepared and filed pleadings in 
the case, undertook research of the 
law, and argued the case before the 
trial judge. On appeal, I prepared 
and filed the briefs and argued 
before the appellate court. On 
remand, I represented the client in 



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successfully resolving the case 
without the need for any further 
litigation. 

Final Dispositi on of Case 

Following the appellate court's 
reversal and remand, the parties 
resolved the case. As I recall, 
the former husband was given more 
liberal visitation with his minor 
child. 

Dates of Repres entation 

1984-1985 

Name of Court/Judge 

Circuit Court of Thirteenth 

Judicial Circuit of the State of 

Florida 

Circuit Judge Phillip L. Knowles 

(retired) 

Name /Address /Phone Numbers of Co- 
Counsel and Counsel of Other Party 

Co-Counsel 

None 

Counsel of Other Party 

Mr. Stephen Carl Cheeseman 
700 East Twiggs Street 
Suite 105 

Tampa, Florida 33602 
(813) 223-4007 

4) Citation of Case 

Malone v. State . 390 So. 2d 338 
(Fla. 1980), cert, denied . State v. 
Malone . 450 U.S. 1034, 101 S. Ct. 
1749, 68 L. Ed. 2d 231 (1981) 



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CaPSUlp Siimin^ rv pf c^sp 

Mr. Malone was indicted for and 
convicted of two counts of first- 
degree murder and one count of 
robbery. At trial, the state 
introduced into evidence 
incriminating statements made by 
Mr. Malone regarding his 
participation in the murders and 
robbery. These statements were 
made to a state informant who had 
been placed in a jail cell with Mr. 
Malone for the specific purpose of 
eliciting incriminating statements 
from Mr. Malone. A motion to 
suppress these statements was 
denied by the trial judge. Mr. 
Malone was eventually sentenced to 
death. The Florida Supreme Court 
held that the statements should 
have been suppressed. Concluding 
that the introduction into evidence 
of these statements was not 
harmless beyond a reasonable doubt, 
the Florida Supreme Court reversed 
Mr. Malone 's convictions and 
sentences of death and remanded for 
a new trial. On remand, Mr. Malone 
pleaded guilty in return for 
concurrent life sentences. 

Partv ReoresPntPH 

Mr, Charles Willis Malone, Jr. 

Nature of Part i ri pr^j-j r^p 

I was court-appointed to represent 
Mr. Malone at his first trial and 
after the case was reversed and 
remanded by the Florida Supreme 
Court. The Office of the Public 
Defender represented him on appeal. 
In connection with my repre- 
sentation of Mr. Malone, I prepared 
and filed extensive pre-trial 
motions, including the pivotal 
motion to suppress, undertook 
extensive research of the law and 

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pre-trial discovery, participated 
in numerous arguments before the 
trial judge in connection with pre- 
trial motions I filed, and tried 
the case to a jury. On remand, I 
helped negotiate a favorable plea 
agreement on behalf of Mr. Malone. 

Final Disposition of Case 

Following the Florida Supreme 
Court's reversal and remand for a 
new trial, Mr. Malone pleaded 
guilty to all charges in return for 
concurrent life sentences. 

Dates of Representation 

1978-1981 

Name of Court /Judge 

Circuit Court of Thirteenth 

Judicial Circuit of the State of 

Florida 

Circuit Judge J. C. Cheatwood 

(retired) 

Name/Address/Phone Numbe rs of Co- 
Counsel and Counsel of O ther Party 

Co-Counsel 

None 

Counsel of Othe r Party 

Mr. C. Thomas Davidson 
100 North Tampa Street 
Suite 2800 

Tampa, Florida 33601 
(813) 224-0866 

5) Citation of Case 

United States v. Conover . 772 F. 2d 
765 (11th Cir. 1985), affirmed in 
part and remanded . Tanner v . United 
States . 483 U.S. 107, 107 S. Ct. 
2739, 97 L. Ed. 2d 90 (1987), 

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191 



opinion on remand. United States v. 
Conover . 845 F. 2d 266 (11th Cir. 
1988) 

Capsule Summar y of Case 

Mr. Conover and Mr. Tanner were 
indicted for conspiracy to defraud 
the United States and for multiple 
counts of mail fraud. The charges 
arose from the awarding of a road 
building contract to Mr. Tanner by 
Mr. Conover as chief of procurement 
for Seminole Electric Cooperative. 
This contract was one of many 
contracts let by Seminole Electric 
in connection with its construction 
of a power generating plant with 
funds loaned and guaranteed by the 
Rural Electrification Admini- 
stration. The first trial lasted 
approximately two months and ended 
in a mistrial because the jury 
could not reach a unanimous 
verdict. The second trial lasted 
approximately six weeks and ended 
with jury verdicts of guilt. 

On appeal, the United States Court 
of Appeals for the Eleventh Circuit 
affirmed the convictions. The 
United States Supreme Court 
accepted certiorari jurisdiction in 
the case. It then affirmed one of 
the points raised relating to juror 
misconduct but remanded to the 
Eleventh Circuit to reconsider the 
sufficiency of the evidence to 
sustain the convictions. On 
remand, the Eleventh Circuit 
determined that the evidence was 
insufficient and directed that the 
convictions be vacated. 

Party Represented 

Mr. William M. Conover 



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Nature of Participation in Case 

I represented Mr. Conover at both 
of his trials arid on direct appeal 
to the United States Court of 
Appeals for the Eleventh Circuit. 
Because I had become a judge when 
the case went to the United States 
Supreme Court, and then on remand 
to the Eleventh Circuit, Mr. John 
DeVault, III, assumed repre- 
sentation of Mr. Conover. 

My participation in the case 
involved extensive research of the 
law, extended discovery, filing, 
preparing, and arguing numerous 
pre-trial and post-trial motions, 
and trying the case to two juries. 
I also assisted in the preparation 
of the briefs on the initial appeal 
to the Eleventh Circuit. 

Final Disposition of Case 

In United States v. Conover . 845 F. 
2d 266 (11th Cir. 1988), the court 
vacated Mr. Conover 's convictions. 

Dates of Representation 

1983-1986 

Name of Court/Judge 

United States District Court, 

Middle District of Florida, Tampa 

Division 

United States District Judge Ben 

Krentzman (retired) 

Name/Address/Phone Numbers of Co- 
Counsel and Counsel o Other Parties 

Co-Counsel 

None 



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193 



CounsPl nf nth er Parfj^g 

Mr. David Best 
20 North Orange Avenue 
Orlando, Florida 32801 
(407) 425-2985 

Mr. Stephen Millbrath 
255 South Orange Avenue 
Suite 1401 

Orlando, Florida 32802 
(407) 841-2330 

Mr. John DeVault, III 
101 East Adams Street 
Jacksonville, Florida 32202 
(904) 353-0211 

Mr. Terry Zitek 

Office of the United States 

Attorney 

500 Zack Street 

Tampa, Florida 33602 

(813) 274-6000 

Mr. David Runyon 

100 2nd Avenue South 

St. Petersburg, Florida 33701 

(813) 892-6001 

6) Citation of ra^^P 

United .Statp>.c; v, Gui 11 ph-t.j np r-o.., 
636 F. 2d 1054 (5th Cir. 1981), 
gppeal after rpm^nH 643 F. 2d 1054 
(5th Cir. 1981) 

Capsule Summar y of C.^^e^ 

The defendants in this case were 
indicted for and convicted of 
conspiracy to possess marijuana 
with intent to distribute and 
possession of marijuana with intent 
to distribute. The evidence used 
to convict them was obtained from a 
boarding of their vessel in Tampa 
Bay by the United States Coast 
Guard at the request of United 
States Customs officers. The 

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194 



central issue in the case was 
whether the boarding was reasonable 
under the Fourth Amendment to the 
United States Constitution. The 
United States Court of Appeals for 
the Fifth Circuit remanded the case 
to the trial judge for further 
findings. After compliance with 
this fact-finding mandate, the 
Fifth Circuit then reversed the 
defendants' conviction because it 
concluded that the boarding was 
accomplished without any reasonable 
suspicion of illicit activity. It 
concluded, therefore, that the 
trial judge should have granted the 
defendants' motion to suppress 
evidence. 

Party Represented 

Mr. Felix Valle 

Nature of Partic ipation in Case 

I represented Mr. Valle both at 
trial and on appeal. I undertook 
research of the law and discovery, 
prepared, filed, and argued the 
motion to suppress before the trial 
judge, tried the case to a jury, 
prepared and filed appellate 
briefs, and orally argued the case 
to the Fifth Circuit. 

Final Di sposition of Case. 

In United States v. Guillen- 
Linares . 643 F. 2d 1054 (5th Cir, 
1981), the court reversed Mr. 
Valle's convictions. 

Dates of Trial Periods 

1978-1981 



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195 



Names of Court/Judge 

United States District Court, 

Middle District of Florida, Tampa 

Division 

United States District Judge 

William Terrell Hodges 

Name/Address/Phone Numbers of Co- 
Counsel and Counsel of Other 
Parties 

Co-Counsel 

None 

Counsel of Other Parties 

Mr. Bennie Lazzara, Jr. 
606 East Madison Street 
Tampa, Florida 33602 
(813) 229-2224 

Mr. Anthony F. Gonzalez 
701 North Franklin Street 
Tampa, Florida 33602 
(813) 224-0431 

Mr. Joseph Ficarrotta 
600 East Madison Street 
Tampa, Florida 33602 
(813) 223-9788 

Mr. George Cardet 
330 S.W. 27th Avenue 
Miami, Florida 33125 
(305) 649-4400 

Mr. Marvin Rudnick 
35 South Raymond Avenue 
Pasadena, California 91105 
(818) 798-2514 

7) Citation of Case 

United States v. McLarty 
(unreported) 
(case number unavailable) 



-37- 



196 



Capsule Summary of Case 

Mr. McLarty, who is an attorney, 
was indicted for tampering with 
evidence in violation of 18 U.S.C. 
§ 1512. The charges arose from his 
representation of various tax 
protesters in an ongoing grand jury 
investigation in Tampa, Florida, 
directed at violations of the 
federal income tax laws. He was 
acquitted by a jury. 

Party Represented 

Mr. Scott McLarty 

Nature of Participation in Case 

I was co-counsel with another 
attorney. My responsibilities 
included undertaking discovery, 
researching the law, preparing, 
filing, and arguing pre-trial 
motions, and participating in the 
actual trial of the case. 

Final Di sposition of Case 

Mr. McLarty was acquitted by a 
jury. 

Dates of Repres entation 

1983 

Names of Court/Judae 

United States District Court, 

Middle District of Florida, Tampa 

Division 

United States District Judge George 

Carr (deceased) 

Name/Address/Phone Numbers of Co- 
Counsel and Counsel of Other Party 



■38- 



197 



Co-Conn.qpl 

Mr. Edward Garland 
3151 Maple Drive N.E. 
Atlanta, Georgia 30305 
(404) 262-2225 

Counsel nf nrh^ r Party 

Ms. Karla Spaulding 
4830 West Kennedy Boulevard 
Tampa, Florida 33609 
(813) 286-4100 

8) Citation of Ca.gp 

State of Florid;^ v. Rohin'^nn , Case 
Number 84-13740-A (unreported) 

Capsule Snmin;:ir v of C^^i.qp 

Mr. Robinson was charged with 
aggravated battery in connection 
with a physical confrontation with 
another individual in which this 
individual sustained serious bodily 
injury. Mr. Robinson claimed he 
acted in self-defense and so 
testified to the jury. The jury 
acquitted him. 

Party R epre.qenl-Pd 

Mr. John Robinson 

Nature of Parti ripati nn in Ca.qp 

My representation of Mr. Robinson 
required me to undertake extensive 
pre-trial discovery, including the 
talcing of pre-trial depositions, 
research of the law, preparing, 
filing, and arguing relevant 
motions, interviewing defense 
witnesses, and trying the case to a 
jury. 



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198 



Final Disposition of Case 

Mr. Robinson was acquitted by a 
jury. 

Dates o f Representation 

1984-1985 

Names of Court/Judae 

Circuit Court of Thirteenth 

Judicial Circuit of the State of 

Florida 

Circuit Judge Harry Lee Coe, III 

(retired) (current State Attorney 

for Thirteenth Judicial Circuit) 

Name/Address/Phone Numbers of Co- 
Counsel and Counsel of Other Party 

Co-Counsel 

None 

Counsel of Other Party 

Mr. Michael LeBron 
235 West 56th Street 
Suite 25D 

New York, New York 10019 
(unpublished phone number) 

9) Citation of Case 

State V. Moore . 486 So. 2d 79 (Fla. 
2d DCA 1986) 

Capsule Summary of Case 

Mr. Moore and Mr. Moorman were 
indicted by a grand jury for 
official misconduct. The trial 
judge granted a motion to dismiss 
the indictment because it 
determined that the indictment was 
tainted by the defendants' 
compelled appearances before the 
grand jury that indicted them. The 



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199 



Second District Court of Appeal 
upheld the dismissal. 

Party Represented 

Mr. Joseph Moore 

Nature of Participation in Case 

I represented Mr. Moore in 
connection with his appearances 
before the grand jury. After his 
indictment, I undertook pre-trial 
discovery, including the taking of 
pre-trial depositions, engaged in 
research of the law, and prepared, 
filed, and argued pre-trial 
motions, including the critical 
motion to dismiss. I also 
represented Mr. Moore on appeal, 
which included more research of the 
law, the preparation and filing of 
appellate briefs, and oral argument 
before the Second District Court of 
Appeal . 

Final Disposition of Case 

In State v. Moore . 486 So. 2d 79 
(Fla. 2d DCA 1986), the court 
affirmed the trial judge's 
dismissal of the indictment brought 
against Mr. Moore. He was never 
recharged. 

Dates of Representation 

1984-1986 

Names of Court/Judge 

Circuit Court of Sixth Judicial 
Circuit of the State of Florida 
Circuit Judge Lawrence Keough 
(retired) 

Name/Address /Phone Numbers of Co- 
Counsel and Coun sel of Other 
Parties 



-41- 



200 

Co-Counsel 

None 

Counsel of Other Parties 

Mr. Bennie Lazzara, Jr. 
606 East Madison Street 
Tampa, Florida 33602 
(813) 229-2224 

Mr. Richard Mensch 

2001 80th Street North 

St. Petersburg, Florida 33710 

(813) 847-8158 



Mr. Michael Halkitis 
10036 Casey Drive 
New Port Richey, Florida 34654 
(813) 869-2401 

10) Citation of Case 

United St ates v. Fred Arthur 
Anderson et al. . Case Number 85-59- 
Cr.-T-13 (NOTE: This case is 
unreported as to my client because 
he was acquitted. It is reported 
as to convicted, appealing co- 
defendants. See United States v. 
Kotvas . 941 F. 2d 1141 (Uth Cir. 
1991), cert, denied . 506 U.S. 1055, 
113 S. Ct. 982, 122 L. Ed. 2d 135 
(1993) .) 

Capsule Summary of Case 

My client in this case, Mr. Richard 
Guagliardo, was indicted for 
conspiracy to commit racketeering, 
racketeering, and mail fraud. His 
co-defendants were indicted for 
similar offenses, including 
extortion. All of the charges were 
based on acts of alleged public 
corruption before the Hillsborough 
County Board of County 
Commissioners. The essence of the 
charges was that the Board was a 



■42- 



201 



criminal enterprise, and certain of 
its members, aided by non-members, 
were engaged in soliciting and 
accepting bribes in return for 
favorable votes on matters, 
particularly zoning matters, which 
came before the Board. Following a 
protracted, highly publicized case, 
Mr. Guagliardo and the majority of 
his co-defendants were acquitted. 

Party Represented 

Mr. Richard Guagliardo 

Nature of Parti cipation in Case 

This case represented the most 
complex and time-consuming matter I 
ever undertook as a trial attorney. 
It required extensive pre-trial 
discovery, which included securing, 
compiling, cataloging, and 
reviewing in detail literally 
thousands of documents. The case 
also required extensive research of 
the law, followed by the 
preparation, filing, and arguing of 
numerous pre-trial motions. It 
also demanded intense preparation 
in terms of attempting to secure a 
fair and impartial jury, preparing 
and delivering an effective opening 
statement, preparing effective 
cross-examinations of numerous 
government witnesses, presenting a 
concise defense, and delivering a 
convincing final argument to the 
jury. 

Final D isposition of Case 

The jury acquitted Mr. Guagliardo 
of all charges. 

Dates of Representation 

1985-1986 



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202 



Names of Court/Judae 

United States District Court, 

Middle District of Florida, Tampa 

Division 

United States District Judge George 

Carr (deceased) 

Name/Address/Phone Numb ers of Co- 
Counsel and Coun sel of Other 
Parties 

Co-Counsel 

None 

Counsel of Other Parties 

Mr. Michael Otis 
3841 West Kennedy Boulevard 
Tampa, Florida 33609 
(813) 872-2656 

Mr. David Maney 
606 East Madison Street 
Tampa, Florida 33602 
(813) 228-7371 

Mr. Robert Polli 
101 East Kennedy Boulevard 
Suite 3130 

Tampa, Florida 33602 
(813) 222-8350 

Mr. Patrick Doherty 
619 Turner Street 
Clearwater, Florida 34616 
(813) 443-0405 

Mr. Raymond Harris 
(no longer practices law; address 
and phone number unknown) 

Mr. Claude Tison 

111 East Madison Street 

Suite 2300 

Tampa, Florida 33601 

(813) 273-4200 



-44- 



203 



Mr. Lee Fugate 
13630 58th Street North 
Clearwater, Florida 34620 
(813) 539-6536 

Mr, Joseph Beeler 
3050 Biscayne Boulevard 
Suite 300 

Miami, Florida 33137 
(305) 576-3050 

Ms. Julianne Holt 
801 East Twiggs Street 
Fifth Floor 
Tampa, Florida 33602 
(813) 272-5980 

Mr. Thomas Hanlon 
210 North Pierce Street 
Tampa, Florida 33602 
(813) 228-7095 

Mr. Manual Lopez 

801 East Twiggs Street 

Fifth Floor 

Tampa, Florida 33602 

(813) 272-5980 

Mr. Joseph Magri 
7650 Courtney Campbell Causeway 
Tampa, Florida 33607 
(813) 281-9000 

Mr. David Runyon 
100 2nd Avenue South 
St. Petersburg, Florida 33701 
(813) 892-6001 

Ms. Karla Spaulding 
4830 West Kennedy Boulevard 
Tampa, Florida 33609 
(813) 286-4100 

In that all of these cases are older than 
five years, I provide the following list of 
members of the legal community who have had 
recent contact with me in my capacity as a 
judge : 



■45- 



204 



Mr. Frederick L. Bateraan, Jr. 
Bateman & Graham, P. A. 
300 E. Park Avenue 
Tallahassee, Florida 32301 
(904) 224-2677 

Mr. Thomas Gonzalez 
Thompson, Sizemore & Gonzalez, P. A. 
109 N. Brush Street-Suite 200 
Tampa, Florida 33601-0639 
(813) 273-0050 

Ms. Arthenia Joyner 

Stewart, Joyner, Jordan-Holmes & 

Holmes, P. A. 

1112 E. Kennedy Blvd. 

Tampa, Florida 33602-0297 

(813) 229-2300 

Mr. Christopher Knopik 

Yerrid, Knopik & Valenzuela, P. A. 

101 East Kennedy Boulevard 

Suite 2160 

Tampa, Florida 33602-5150 

(813) 222-8222 

Mr. Thomas C. MacDonald, Jr. 
Shackleford, Farrior, Stallings & 
Evans, P. A, 

501 East Kennedy Blvd. -Suite 1400 
Tampa, Florida 33601-3324 
(813) 273-5000 

Ms. Kay J. McGucken 

Kay J. McGucken, P. A. 

1320 East Ninth Avenue 

Suite 210 

Tampa, Florida 33605-3616 

(813) 248-3782 

The Hon. Stevan Northcutt 

Second District Court of 

Appeal 

Post Office Box 327 

Lakeland, FL 33802-0327 

(941) 499-2290 



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205 



Mr. Hugh Smith 

Smith & Fuller, P. A. 

101 East Kennedy Blvd. -Suite 1800 

Tampa, Florida 33602-5148 

(813) 221-7171 

Mr. Thomas Steele 

Fowler, White, Gillen, Boggs, 

Villareal & Banker, P. A. 

501 E. Kennedy Blvd. -Suite 1700 

Tampa, Florida 33602 

(813) 228-7411 

Mr. Frank Strelec 

Williams, Parker, Harris, Dietz & 

Getzen, P. A. 

P.O. Box 3258 

Sarasota, Florida 34230-3258 

(941) 366-4800. 

19. Le gal Activities : Describe the most significant legal 
activities you have pursued, including significant 
litigation which did not progress to trial or legal 
matters that did not involve litigation. Describe the 
nature of your participation in this question, please 
omit any information protected by the attorney-client 
privilege (unless the privilege has been waived.) 



1. I represented Mr. Kenneth Mullins in 
State of Florida v. Mullins , Case Number 79- 
5025-D, Circuit Court of the Thirteenth 
Judicial Circuit of the State of Florida. 
Mr. Mullins, along with a co-defendant by the 
name of Mr. Brett Bachelor, was charged with 
first-degree murder and robbery of an older 
gentleman in the Hyde Park area of Tampa. 
The co-defendant was arrested immediately 
after the murder, went to trial, and was 
convicted of second-degree murder, after 
which he was sentenced to ten years in the 
Florida State Prison. This co-defendant 
always maintained his innocence. 

Following the co-defendant's trial, my client 
was arrested, and I was immediately retained 
to represent his interests. After extensive 
pre-trial discovery, I was able to convince 
the State Attorney's office of Hillsborough 
County that both my client and the co- 

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206 



defendant did not commit this crime. As a 
result, the charges against my client and the 
co-defendant were dismissed and the co- 
defendant was freed after spending 
approximately one year in prison. 

A very interesting event just took place in 
this case several months ago. Another person 
allegedly confessed to committing this murder 
and has been indicted by the Hillsborough 
County grand jury for first-degree murder. 
To my knowledge, the case has not been 
disposed of. 

The Assistant State Attorneys who handled 
these cases for the State of Florida were Mr. 
Thomas Fox, 401 East Kennedy Boulevard, 
Tampa, Florida, 33602, (813) 228-9819; now 
Circuit Judge Robert Sims, Hillsborough 
County Courthouse Annex, Room 122, Tampa, 
Florida, 33602, (813) 272-6874; and now 
County Judge Walter Heinrich, Hillsborough 
County Courthouse Annex, Room 123 (813) 272- 
6841. The Assistant State Attorney who is 
handling the case against the recently- 
charged individual is Ms. Karen Cox, 
Hillsborough County Courthouse Annex, 800 
East Kennedy Boulevard, Fifth Floor, Tampa, 
Florida, 33602, (813) 272-5400. 

2. I represented the dean of students of a 
local high school who was charged with 
committing a sexual offense on a young boy 
who was his "little brother" in the "Big 
Brother-Little Brother" program. He was 
immediately suspended from his position by 
the Hillsborough County School Board. Quite 
naturally, the case was the subject of 
extensive publicity. 

My client was adamant that he was innocent of 
the charge. The child had made a similar 
accusation against another individual which 
proved to be unfounded. Accordingly, I 
immediately undertook an extensive 
preindictment investigation to establish his 
innocence including the taking of numerous 
sworn statements from relevant witnesses. 
The case was presented to the Hillsborough 
County grand jury for its determination of 

-48- 



207 



whether there was probable cause to return an 
indictment against my client. The State 
Attorney's office of Hillsborough County 
presented certain evidence that I had 
uncovered to the grand jury for its 
consideration. Additionally, my client, 
without a grant of immunity, testified before 
the grand jury. The grand jury declined to 
indict my client and the charge against him 
was dismissed. He was later reinstated to 
his position by the school board and awarded 
all of his back pay. 

I later had the court file sealed pursuant to 
Florida law so I cannot furnish a case 
number. I do recall, however, that Mr. Lee 
Atkinson, 2655 McCormick Drive, Clearwater, 
Florida, 34617, (813) 799-2882, was one of 
the assistant state attorneys assigned to the 
case. 

3. I represented Mr. Allan Brown in the case 
of Independent Bank of Tampa v. Brown , Case 
Number 82-8533-H, Circuit Court of the 
Thirteenth Judicial Circuit of the State of 
Florida. Mr. Brown had been taken into 
custody pursuant to a Writ of Ne Exeat. The 
facts of the case were unique in that the 
client was alleged to be in default as to an 
unsecured bank loan in the principal sum of 
approximately $100,000. After I obtained the 
release of my client from jail, I 
counterclaimed against the bank for malicious 
prosecution, false imprisonment, and abuse of 
process. The basis of these claims was that 
the bank had misused the Writ of Ne Exeat and 
their actions in that regard amounted to 
nothing more than having my client imprisoned 
for owing a simple debt which is contrary to 
Article 1, Section 11 of the Florida 
Constitution. After negotiations with the 
bank, it dismissed its claim against my 
client and forgave the $100,000 debt. In 
return, my client dismissed his claims 
against the bank for the sum of $1. 

The attorney for the bank was Mr. Samuel 
Mandelbaum, 712 South Oregon Avenue, Tampa, 
Florida 33606, (813) 222-7500. 



-49- 



208 



4. I am frequently called upon to lecture at 
continuing legal education seminars. Over 
the past several years I have lectured at 
educational events sponsored by The Florida 
Bar, the Hillsborough County Bar Association, 
the Young Lawyers Section of the Hillsborough 
County Bar Association, the Hillsborough 
County Criminal Defense Lawyers Association, 
the Pinellas County Criminal Defense Lawyers 
Association, the St. Petersburg Bar 
Association, the Academy of Florida Trial 
Lawyers, Stetson University College of Law, 
The American Judicature Society, the Defense 
Research and Trial Lawyers Association, the 
Judicial Assistants Association of Florida, 
and the Second District Court of Appeal. I 
have also judged "Moot Court" competitions 
for Stetson University College of Law. 
Finally, I have also participated in 
community relations forums sponsored by the 
University of South Florida and the City of 
Tampa and have spoken to elementary, high 
school, and college students about the role 
of the judiciary in our society. 

5. Finally, I would like to emphasize 
another aspect of my background which I 
believe reflects favorably on my candidacy 
for United States District Judge. Since May 
of 1992, Senators Connie Mack and Bob Graham 
have impanelled Federal Judicial Nominating 
Commissions to consider the qualifications of 
applicants for vacancies on the United States 
District Court, Middle District of Florida. 

I am honored to have been the only applicant 
recommended by each of the Commissions to 
Senators Mack and Graham as being qualified 
to be a United States District Judge. 



-50- 



20S 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, amounts and dates of all anticipated 
receipts from deferred income arrangements, stock, 
options, uncompleted contracts and other future 
benefits which you expect to derive from previous 
business relationships, professional services, firm 
memberships, former employers, clients, or customers. 
Please describe the arrangements you have made to be 
compensated in the future for any financial or business 
interest . 

Only two categories of this question apply to 
me — deferred income arrangements and 
retirement benefits. 

Deferred Income Arrangement 

Beginning in July of 1987, after becoming a 
state-court judge, I have deferred $100 per 
month from my state salary under the State of 
Florida Deferred Compensation Plan 
administered by Security First Life Insurance 
Company. According to the latest account 
statement issued September 30, 1996, the 
annuity value is $14,983.86, the lump sum 
retirement value is $14,691.29, the lump sum 
termination value is $14,656.33, and the lump 
sum transfer value is $14,656.33. Withdrawal 
from the Plan is limited to the following 
circumstances: retirement, termination of 
employment, total and permanent disability 
lasting at least six months, death, or 
unforeseeable emergency. Assuming I am 
confirmed as a United States District Judge, 
I would have the option of obtaining this 
money under the category of "termination of 
employment." I have not yet decided whether 
I would pursue that option or leave the money 
in the account until I retire. 

Retirement Benefits 

Since becoming a state-court judge in January 
of 1987, I have been a member of the Elected 
State and County Officers' Class of the 
Florida Retirement System. Retirement 
contributions to the system are made solely 
by the state of Florida on behalf of members 
of the class based on a certain percentage of 

-51- 



210 



a class member's monthly salary. Vesting for 
retirement benefits occurs after 8 years of 
continuous service, a requirement I have 
fulfilled. Assuming I am confirmed as a 
United States District Judge, I would have 
two options--take early retirement and 
receive reduced benefits or wait until age 62 
to start drawing retirement at a higher rate. 
I have not yet decided which option to 
pursue . 

Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the 
categories of litigation and financial arrangements 
that are likely to present potential conf licts-of- 
interest during your initial service in the position to 
which you have been nominated. 

As a state-court judge, I have adhered to a 
basic philosophy--always avoid even the 
appearance of impropriety. I will continue 
to adhere to this philosophy if I become a 
United States District Judge. That is, once 
I become personally aware of a potential 
conflict of interest, either on my own or 
through any source, I will immediately bring 
it to the attention of all parties and, if 
the conflict is of such a nature that my 
continued involvement in the case manifests 
even the appearance of impropriety, I will 
recuse myself from the case. 

I know of no specific category of litigation 
that may present a conflict of interest. As 
to financial arrangements, I do have a 
partnership interest with other attorneys in 
a law office building. However, since 
becoming a state judge, I have always recused 
myself from presiding over cases in which 
these attorneys were involved. I will 
continue to follow this practice if I am 
ultimately confirmed as a United States 
District Judge. 

Additionally, I have several relatives who 
practice law in Tampa, Florida. Once again, 
since becoming a state judge, I have always 
recused myself from presiding over cases in 
which these attorneys are involved. I will 

-52- 



211 



continue this practice if ultimately 
confirmed as a United States District Judge. 

Finally, I will adhere strictly to the 
standards imposed by the Codes of Conduct for 
United States Judges and other rules of the 
Judicial Conference of the United States, as 
well as all statutory provisions, governing 
disqualification or recusal. 

Do you have any plans, commitments, or agreements to 
pursue outside employment, with or without 
compensation, during your service with the court? If 
so, explain. 

No. 

List sources and amounts of all income received during 
the calendar year preceding your nomination and for the 
current calendar year, including all salaries, fees, 
dividends, interest, gifts, rents, royalties, patents, 
honoraria, and other items exceeding $500 or more (If 
you prefer to do so, copies of the financial disclosure 
report, requested by the Ethics in Government Act of 
1978, may be substituted here.) 

See attached form AO-10 which immediately follows 
this part. 

Please complete the attached financial net worth 
statement in detail (Add schedules as called for) . 

See attached financial net worth statement which 
immediately follows this part. 

Have you ever held a position or played a role in a 
political campaign? If so, please identify the 
particulars of the campaign, including the candidate, 
dates of the campaign, your title and responsibilities. 

No. 



■53- 



212 



^?/96 



FINANCIAL DISCLOSURE REPORT 

NOMINATION 



i-"!?*.' Novel 
U.S.(. App. 



1. Person Reporting (Last naae, first, aiddle initial) 
LAZZARA, RICHARD A. 


2. Court or Organization 

U.S.D.C. Florida 


3. Date of Report 
01/07/97 


4. Title (Article III judges indicate active or 

senior statui; Ifladistrate judges indicate 

U.S. District Court Judge 


5. Report Type (check appropriate type) 
X Noaination, Date 01/7 /97 
Initial Annual Final 


6. Reporting Period 
01/01/95 - 01/01/97 


7. chaabers or Office Address 

801 E. Twiggs Street, #600 
Tampa, FL 33602 


8. On the basis of the infor^tion contained in this Report and 
any aodifications^pertaining thereto.^it is, in ay dpinion, 
in coap dance with applicable laws ahd regulations. 

Reviewing Officer Date 


IMPORTANT NOTES: The instrutSions accompanying this form must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable information. Sign on last page. 



I. POSITIONS. (Reportingindividualonly, see pp. 9-13 of Instructions.) 



n 



POSITION 
NOME (No reportable positions) 



NAME OF ORGANIZATION/ENTITY 



Custodian 



Damon Lazzara-Florida Gift to Minor's Act 
Damon Lazzara Trust 



II. AGREEMENTS. (Reporting individual only; see pp. 14-17 of Instructions.) 
DATE PARTIES AND TERMS 



n 



NONE (No reportable agreements) 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 18-25 of Instructions.) 



DATE 



n 



SOURCE AND TYPE 
NONE (No reportable non-investment income) 

State of Florida-Judicial Salary 



State of Florida-Judicial Salary 



University of South Florida (S) 



S 104382.00 
S 110627.00 
S 0.00 

$ 

$ 



213 



FINAHCIAL DISCLOSURE REPORT 



Naae of Pcrton Reporting 
LAZZARA, RICHARD A. 



Date of Report 
01/07/97 



IV. REIMBURSEMENTS and GIFTS - transporlation, lodging, food, cntertainmenl. 

(IncJudes those (o spouse and dcpendenl children; use the parentbelicals '(S)' and '(DC)' lo indicate reportable 
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 26-29 of Instructions.) 
SOURCE DESCRIPTION 



n 



Exempt 



NONE (No such reportable reimbursements or gifts) 



Exempt 



OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to 
indicate other gifts received by spouse and dependent children, respectively. See pp. 30-33 of Instructions.) 



n 



SOURCE 
NONE (No such reportable gifts) 



DESCRIPTION 



Exempt 



Exempt 



VI. 



n 



LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible 
for Uabihty by using the parenthetical "(S)" for separate liability of the spouse, "(J)" for joint UabiUty of 
reporting individual and spouse, and "(DC)" for liability of a dependent child. See pp. 34-36 of Instructions.) 

CREDITOR DESCRIPTION VALUE CODE* 



NONE (No reportable liabilities) 



Barnett Bank of Florida 



Mortgage on law office in Taunpa, FL 



VALUE COOES: 



iUimr-im,,»o § = U^%--»i?;888,ooo M iSI?4<^n !1?868?8oo 



H - 1100,001 to (250,000 



214 



FINANCIAL DISCLOSURE REPORT 



Nam of Person Reporting 
LAZZARA, RICHARD A. 



Date of Report 
OI/O7/97 



VII. Page 1 INVESTMENTS and TRUSTS -income, value, transaaions (Includes those of spouse 
and dependent children. See pp. 37-54 of Instructions.) 



A. B. 
.Qescriptjon of Assets 
(incluaing trust assets) 

Indicate where applicable, owner of 
the asset W.usiK§ the^pafenthetical 
°(J)" for ibint ownership of report- 
ing indwiiual and spousfe, 'tsr'^for 
separate ouriershfR b^poise, .'(DC)'' 
fof ownership by flependent child. 

Place "(X)" after each asset 
exe»pt froo prior disclosure. 


IncQue 

during 


'=J?'ln3# 


Transactions during reporting period 


(1) 


(2) 


(1) 


(2) 

Value 
Methods 


j1) 

buyflill, 
■erger. 


If not exempt from disclosure ] 


(2) 

Hontfi- 
Day 


(3) 


(4) 


43y%fPt?:r 


NONE (No reportable 




















' ^fiiiCy '?Srp'fS^rif^l%lO/95 


D 


Interest 




Q 


Exempt 










2 L.B.O.P., Inc. stock, (closest, ,„ 
family corp.)appraisal 9/30/95 


B 


Interest 




a 


Exempt 










3 Plaza EquipBen.t Co. stock 
(closed family corp.) 




None 




u 


Exempt 










4 Lazzara Family. PartnershiD 
(closed family partnership) 


D 


Rent 




u 


Exempt 










5 Law office^bujlding . . ,,„, 

(recertified appraisal 7/23/90) 




None 


pi 





Exempt 










6 Security First Life (Def.comp 
plan) 'Tallahassee, fL 


A 


Interest 




T 


Exempt 










7 Nationsbank (IRA), Tampa, FL 


A 


interest 




T 


Exempt 










8 PanAmerican Life (IRA) New 


A 


Interest 




T 


Exempt 










9 Nationsbank (IRA) (S) Ta^M, 


A 


interest 




T 


Exempt 










10 PanAmerican Life (IRA) (S), 
New Orleans, U 


A 


interest 




T 


Exempt 










" "a'i?n-uS''t^¥ Ur^iT^Sfv, N.r. 


A 


interest 




T 


Exempt 










12 Suncpast Schools Credit Union 
(J), Tampa, FL 


A 


interest 




T 


Exempt 










13 Univ. of South FL Credit Union 
(J), Tampa, fL 


A 


interest 




T 


Exempt 










"- "^s^'r^nS^srir^" ""'' 


c 


Dividend 




T 


Exempt 










" 'TfcTVa^Vl^^^" ""'"" 


C 


Interest 




T 


Exempt 










16 




















17 




















18 




















' {S^^^'^ei^rsii t=tls?88i°fol!8,ooo SI36?8Ji'?o'iiS8°ooo mU°U°tlhnoo,ooo BiSlff JhiS I1!fl88?ooo 


' n'^'dV'h & 03) fi=Ulo?88i°fol!8o,ooo £li^?8Ji'?o*l?;888,ooo t=SI?t°?JaS%f:88o?88o '''*'°°-'^' " '""'"^ 


' rfi^'cS!*^)'"*"^ 3=Sggfiltie 5=S?K^^"^ """ °"^>" 5:H??SfS5 T=cash/narket 



215 



FINANCIAI. DISCXOSURE REPORT 



Naae of Person Reporting 
LAZZARA, RICHARD A. 



Date of Report 
01/07/97 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Report) 
None 



216 



FINANCIAL DISCLOSURE REPORT 



Naae of Person Reporting 
LAZZARA, RICHARD A. 



Date of Report 
01/07/97 



IX. CERTIFICATION. 



In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion 
No. 57 of the Advisory Conunittee on Judicial Activities, and to the best of my 
knowledge at the time after reasonable inquiry, I did not perform any 
adjudicatory function in any litigation during the period covered by this report 
in which I, my spouse, or my minor or dependent children had a financial 
interest, as defined in Canon 3C(3)(c), m the outcome of such litigation. 

I certify that all the information given above (including information 
pertaining to my spouse and minor or dependent children, if any) is accurate, 
true, and complete to the best of my knowledge and belief, and that any 
information not reported was withheld because it met applicable statutory 
provisions permitting non-disclosure. 

I further certify that earned income from outside employment and honoraria 
and the acceptance of gifts which have/been reported are in compliance with the 
provisions of 5 U.S.C. app. 7, secti^v)* 501 et. seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. 



Signature 




Date January 7, 1997 



NOTE: ANY INDIVIDUAL WHO KNOWINgifY AND WILFULLY FALSIFIES OR FAILS TO FILE 
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. APP. 6, 
SECTION 104) . 



FILING INSTRUCTIONS: 

Mail signed original and 3 additional copies to: 

Committee on Financial Disclosure 

Administrative Office of the United States Courts 

One Columbus Circle, N.E. 

Suite 2-301 

Washington, D.C. 20544 



217 



Lazzara Family 
Partnership 


289, 


000 


00 










TIAA (Annuity) 


8, 


750 


00 


Total 
Liabilities 


204, 


400 


00 


Total assets 


897, 


900 


00 


Net Worth 

Total 

liabilities and 
net worth 


693, 
897, 


500 

900 


00 


Contingent 
Liabilities 






00 


General In- 
formation 








As endorser, 
comaker or 
guarantor 






00 


Are any assets 
pledged? Add 
schedule 






NO 


On leases or 
contracts 






00 


Are you 
defendant in 
any suits or 
legal actions 






NO 


Legal claims 






00 


Have you ever 

taken 

bankruptcy? 






NO 


Provision for 
federal income 
tax 






::o 










Other special 
debt 






00 



























































































218 



REAL ESTATE OWNED/REAL EASTATE MORTGAGES OWED 

1) RESIDENCE 

Fair market value $198,000 

First Mortgage due Barnett Bank 
of Tampa 121,100 

Home Equity Loan due Barnett Bank 
of Jacksonville 10,900 



2) OFFICE BUILDING (1/12 interest) 

fair market value of interest $ 91,200 

liability on mortgage due 
Barnett Bank of Tampa based 71,800 

on interest 

UNLISTED SECURITIES 

1) L. O. C, Inc. $ 58,000 
(Closed family corporation) 

Lazzara Bulk Oil and Packaging, Inc. 58,000 
(Closed family corporation) 

2) Plaza Equipment Company 

(Closed family corporation) 65,550 



NOTE 

I am currently the Trustee for my son Damon's trust (he is 
19 years of age). The trust has $5,580 in a money market account 
at the Suncoast Schools Federal Credit Union and $35,275 in a 
certificate of deposit at the same institution. I also hold 
shares of stock in The Southern Company for my son under the 
Florida Gift to Minors Act. The current fair market value of the 
stock is $51,085. I am also the beneficiary of two life 
insurance policies on my son's life with Metropolitan Life and 
Nationwide Mutual. The cash value of the Metropolitan policy is 
$8,700. The cash value of the Nationwide policy is $1,600. All 
of these assets were derived from gifts made to my son over the 
years by my parents. I am simply managing them for his benefit 
until such time as he is financially mature enough to manage them 
himself. Finally, my son has no debts. 



219 



FINANCIAL STATEMENT 
NET WORTH 

Provide a complete, current financial net worth statement which itemxzes in 
detail all assets (including bank accounts, real estate, securities, trusts, 
investments, and other financial holdings) all liabilities (including debts, 
mortgages, loans, and other financial obligations) of yourself, your spouse, and 
other immediate members of your household. 



ASSETS 


LIABILITIES 


Cash on hand 
and in banks 
(average 
monthly 
balance) 


13, 


000 


00 


Notes payable 
to banks 
( secured) 






00 


U.S. Gov't 
securities- -add 
schedule 






00 


Notes payable 
to banks 
(unsecured) 






00 


Listed 

securities --add 
schedule 


181, 


550 


00 


Notes payable 
to relatives 






00 


Accounts and 

notes 

receivable 






00 


Accounts and 
bills due- 
credit cards 




600 


00 


Due from friend 
or relative 






00 


Unpaid income 
tax 






00 


Due from others 






00 


Other unpaid 
tax and 
interest 






00 


Doubtful 






00 


Real estate 
mortgage 
payable-add 
schedule 


203, 


800 


00 


Real estate 

owned-add 

schedule 


289, 


200 


00 


Chattel 
mortgages and 
other liens 
payable 






00 


Real estate 

mortgages 

receivable 






00 


Other debts- 
itemize 






00 


Autos and other 

personal 

property 


45, 


000 


00 










Cash value 
life insurance 


11, 


500 


00 










Other assets- 
itemize — IRAs 


45, 


000 


00 










Security Life- 
( Deferred Comp. 
Plan) 


14, 


900 


00 











220 



III. GENERAL (PUBLIC) 

An ethical consideration under Canon 2 of the American 
Bar Association's Code of Professional Responsibility 
calls for "every lawyer, regardless of professional 
prominence or professional workload, to find some time 
to participate in serving the disadvantaged." Describe 
what you have done to fulfill these responsibilities, 
listing specific instances and the amount of time 
devoted to each. 

Both as a lawyer and judge, I have 
participated in various activities designed 
to educate the community about the legal 
profession and the judicial system. Such 
activities have included service on Law Day 
committees, speaking to members of civic 
clubs and organizations, speaking to students 
in a classroom setting, and serving on 
community discussion panels. Furthermore, 
although I never belonged to any organization 
which provided pro bono legal work during my 
years as a practicing attorney, I would from 
time to time take cases for a minimal fee. 
Additionally, I was on the court-appointed 
list of attorneys in both the federal and 
state systems. When selected from this list, 
I would provide legal representation to 
indigent criminal defendants for a reduced 
fee. 

The American Bar Associates Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a 
judge to hold membership in any organization that 
invidiously discriminates on the basis of race, sex, or 
religion. Do you currently belong, or have you 
belonged, to any organization which discriminates-- 
through either formal membership requirements or the 
practical implementation of membership policies? If so, 
list, with dates of memberships. What you have done to 
try to change these policies. 

I have never belonged to any organization 
that discriminates on the basis of race, sex 
or religion. 

Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal 
courts? If so, did it recommend your nomination? 

-54- 



221 



Please describe your experience in the entire judicial 
selection process, from beginning to end (including all 
circumstances which led to your nomination and 
interviews in which you participated) . 

Senator Bob Graham has impanelled a Federal 
Judicial Nominating Commission to recommend 
candidates to him for nomination to the 
United States District Courts located in the 
State of Florida. This commission 
recommended me to Senator Graham for 
nomination to the United States District 
Court, Middle District of Florida. 

In connection with this process, I was 
required to fill out and submit to each 
commission member a detailed questionnaire 
designed to elicit much the same information 
that is asked for in this questionnaire. 
After that, I was invited to be personally 
interviewed by the commission members who 
reside within the Middle District. During 
the course of the interview, which lasted 
approximately thirty minutes and was open to 
the public, the commission members asked me 
in-depth and far-ranging questions designed 
to determine my qualifications to be a United 
States District Judge. My name, along with 
the names of two other well-qualified 
individuals, was then submitted to Senator 
Graham. 

Senator Graham then conducted personal 
interviews of all three of the finalists, 
after which he submitted his recommendation 
to President Clinton that I be nominated for 
this federal judgeship. 

Following Senator Graham's recommendation to 
the President, I completed and submitted 
comprehensive background forms to the 
Department of Justice, the American Bar 
Association, and the Federal Bureau of 
Investigation. I was then interviewed by 
representatives of the Department of Justice, 
the ABA, and the FBI and was the subject of 
extensive background checks by all three of 
these entities. 



-55- 



222 



Has anyone involved in the process of selecting you as 
a judicial nominee discussed with you any specific 
case, legal issue or question in a manner that could 
reasonably be interpreted as asking how you would rule 
on such case, issue, or question? If so, please 
explain fully. 

No. 

Please discuss your views on the following criticism 
involving "judicial activism." 



The role of the Federal judiciary within the 
Federal government, and within society 
generally, has become the subject of 
increasing controversy in recent years. It 
has become the target of both popular and 
academic criticism that alleges that the 
judicial branch has usurped many of the 
prerogatives of other branches and levels of 
government . 

Some of the characteristics of this "judicial 
activism" have been said to include: 

a. A tendency by the judiciary toward 
problem-solution rather than grievance- 
resolution; 

b. A tendency by the judiciary to 
employ the individual plaintiff as a vehicle 
for the imposition of far-reaching orders 
extending to broad classes of individuals; 

c. A tendency by the judiciary to 
impose broad, affirmative duties upon 
governments and society; 

d. A tendency by the judiciary tov;ard 
loosening jurisdictional requirements such as 
standing and ripeness; and 

e. A tendency by the judiciary to 
imposed itself upon other institutions in the 
manner of an administrator with continuing 
oversight responsibilities. 



-56- 



223 



As a state court judge for the past nine 
years, I am keenly aware of the criticism 
levied against not just federal judges but 
also state judges regarding their tendency to 
engage in "judicial activism" and to usurp 
functions which, under the constitutional 
doctrine of the separation of powers, are the 
exclusive prerogatives of the executive and 
legislative branches of government. 

In my view, a judge's resolution of a case, 
whether in the federal or state system, must 
be accomplished in strict accord with the 
relevant statutory provision that confers 
jurisdiction to act in the case. 
Accordingly, in resolving a case, a judge 
must first determine whether jurisdiction has 
been conferred by the legislature and whether 
it has been properly invoked by the parties. 
If jurisdiction or standing is lacking, the 
judge is then obligated to terminate the 
litigation because it is a fundamental 
principle of our jurisprudence that without 
jurisdiction conferred by law, a judge has 
absolutely no authority to act. 

Once a judge has determined that jurisdiction 
has been legislatively conferred, it is 
equally important that the judge, during the 
dispute-resolution process, exercise that 
jurisdictional authority in strict accord 
with the legislative will embodied in the 
statutory provision at issue. I am a firm 
believer in the fundamental precepts that 
legislative intent is the polestar by which a 
judge must be guided in interpreting and 
applying a statutory provision and that such 
intent, as gleaned from a statute, is the law 
which must be followed. 

I also adhere to the basic proposition that 
where the legislature has clearly manifested 
its intent through plain and unambiguous 
language, any further judicial construction 
is not only inappropriate but unwarranted. 
In my view, a judge who does not strictly 
adhere to this fundamental principle becomes 
in effect a "legislator" and risks expanding 
the reach of a statute far beyond what the 
legislature intended, to the detriment of the 

-57- 



224 



cornerstone of our system of constitutional 
government, the doctrine of the separation of 
powers . 



-58- 



225 



I. BIOGRAPHICAL INFORMATION 



1. Full name (include any former names used) . 
A. Richard Caputo* 



Address: List current place of residence and office 
address (es) . 



Office: 



387 Wyoming Avenue, P.O. Box 2059, Kingston, 
PA, 18704-2059 



3. Date and place of birth. 

May 22, 1938, Portchester, New York 



Marital Status (include maiden name of wife, or husband's 
name). List spouse's occupation, employer's name and 
business address (es). 

Married to the former Rosemary Shea. She is not employed 
outside the home. 



Education : List each college and law school you have 
attended, including dates of attendance, degrees received, 
and dates degrees were granted. 

Brown University, 1956-1960, A.B. Degree 1960 
University of Pennsylvania Law School, 1960-1963, 
LL.B. Degree 1963 



Employment Record ; List (by year) all business or profes- 
sional corporations, companies, firms, or other enterprises, 
partnerships, institutions and organizations, nonprofit or 
otherwise, including firms, with which you were connected as 
an officer, director, partner, proprietor, or employee since 
graduation from college. 



* My first name is Albert. Because my father's name was the 
same, I have been called Richard since childhood, and have never 
used my first name, with the exception of military service where 
personnel forms called for the use of one's first name. 



226 



A. Richard Caputo 



1960-1963 Summers : Worked as a truck driver/ laborer for 

R. J. Rich Construction Company, a residential developer 
in the town of Rye, New York. The firm is no longer in 
business. 

August 1963-September 1964 : Clerked in the law office 

of Charles A. Shea, Jr., Esquire, 626 First Eastern 
Bank Building, Wilkes-Barre, PA, 18701. I did research, 
drafted pleadings, briefs and memoranda. 

September 1964-September 1967 ; Served in the United States 

Air Force (JAG) , Plattsburgh AFB, New York. I performed 
as both trial and defense counsel in courts-martial, as 
counsel in administrative elimination board hearings and 
as a claims officer. 

January-September 1968 : Served as a public defender for 

Luzerne County, Pennsylvania. I represented indigent 
defendants in criminal cases. 

September 1968-Present ; Principal in Shea, Shea & Caputo, 

626 First Eastern Bank Building, Wilkes-Barre, PA, 18701 
(1968-1982); 310 Bicentennial Building, Wilkes-Barre, 
PA, 18701 (1982-October, 1994); 387 Wyoming Avenue, 
Kingston, PA, 18704 (November, 1994-Present) . I have 
been engaged in the general practice of law with empha- 
sis on construction and commercial litigation and 
multiemployer pension plan law. 

1973-1992 ; Secretary and Director of Stegmaier Brewing Company, 
Wilkes-Barre, Pennsylvania 

1980-Present ; Assistant Secretary, McCarthy Enterprises, Inc., 
Kingston, Pennsylvania 

1985-Present : Partner in Druid Associates, an investment 
partnership, which owns an interest in an apartment 
building in Mamaroneck, New York (Carolyn Court) , and 
an interest in an apartment building in Fleetwood, 
New York (William Street) . I am a twenty-five (25%) 
percent partner in Druid Associates. 

1985-Present : Assistant Secretary of Bronsberg & Hughes 

Pontiac, Inc., d/b/a Wyoming Valley Motors, Larksville, 
Pennsylvania 

1986-Present : Partner in Alafaya Associates, an investment 
partnership, which owns an interest in an apartment 
building in Fleetwood, New York (William Street) . I am 
a sixteen and two-thirds (16 2/3%) percent partner in 
Alafaya Associates. 



-2- 



227 



A. Richard Caputo 



1988-1992 ; Director of Unifax, Inc. (now US Foodservice, Inc.) 
Wilkes-Barre, Pennsylvania 

1990-Present : Assistant Secretary of Middle Road Development 
Corp. , Kingston, Pennsylvania 

1990-Present ; Assistant Secretary of Magicorp, Inc., 
Kingston, Pennsylvania 

1990-Present ; Assistant Secretary of Plainco, Inc., 
Kingston, Pennsylvania 

1990-Present : Assistant Secretary of Forsuns, Ltd., 
Kingston, Pennsylvania 

1990-Present ; Assistant Secretary of Robbins Door & Sash 
Company, Kingston, Pennsylvania 

1991-Present : Director and Vice-President of Maplemoor, 
Inc. , Lehman, Pennsylvania 

1994-Present : Director and Secretary/Treasurer of The 
Luzerne Foundation, a community foundation, 
Wilkes-Barre, Pennsylvania 

7. Military Service : Have you had any military service? If so, 
give particulars, including the dates, branch of service, 
rank or rate, serial number and type of discharge received. 

Yes, 

September 2, 1964, through September 1, 1967, U.S. Air Force 

(JAG) - First Lieutenant, promoted to Captain March 2, 1966 

Inactive Reserve from September 2, 1967 through September 27, 

1973 

Serial Number: FV 3106149 

Honorably Discharged September 27, 1973 

8. Honors and Awards : List any scholarships, fellowships, hon- 
orary degrees, and honorary society memberships that you 
believe would be of interest to the Committee. 

None. 



9. Bar Associations : List all bar associations, legal or 

judicial-related committees or conferences of which you are or 

have been a member and give the titles and dates of any 
offices which you have held in such groups. 

American Bar Association 
Pennsylvania Bar Association 

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A. Richard Caputo 



Federal Bar Association 

Luzerne County Law & Library Association (Luzerne County 
Bar Association) 

Member, Committee on Unauthorized Practice 
Member, Committee on Continuing Legal Education 

Member, Third Circuit Judicial Conference 



Other Memberships ; List all organizations to which you 
belong that are active in lobbying before public bodies. 
Please list all other organizations to which you belong. 

Lobbying : 

Except for the American Bar Association, I am not aware 
that I belong to any organization which is active in 
lobbying before public bodies. 

Other organizations to which I belong: 

Huntsville Golf Club - Bylaws attached as Exhibit "1" 
The Luzerne Foundation 

Westmoreland Club - Bylaws attached as Exhibit "2" 
Wyoming Valley Country Club - Bylaws attached as 
Exhibit "3" 



11. Court Admissions ; List all courts in which you have been 
admitted to practice, with dates of admission and lapses if 
any such memberships lapsed. Please explain the reason for 
any lapse o'f membership. Give the same information for 
administrative bodies which require special admission to 
practice. 

Supreme Court of the Commonwealth of Pennsylvania, 

April 27, 1964 
Luzerne County Court, February 27, 1964 
United States District Court for the Middle District of 

Pennsylvania, October 26, 1967 
United States District Court for the Eastern District of 

Pennsylvania, April 4, 1996 
United States Court of Appeals for the Third Circuit, 

March 19, 1970 

12. Published Writings : List the titles, publishers, and dates 
of books, articles, reports, or other published material you 
have written or edited. Please supply one copy of all pub- 
lished material not readily available to the Committee. 
Also, please supply a copy of all speeches by you on 
issues involving constitutional law or legal policy. If 
there were press reports about the speech, and they are 
readily available to you, please supply them. 

None. 



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A. Richard Caputo 

13. Health : What is the present state of your health? List 
the date of your last physical examination. 

On October 16, 1993, I suffered a heart attack. 
On October 25, 1993, I had coronary artery bypass surgery 
which involved three (3) grafts. I was hospitalized at 
Wilkes-Barre General Hospital, Wilkes-Barre, Pennsylvania 
from October 16, 1993, to November 1, 1993. I began to work 
in January, 1994, on a part-time basis and resumed full-time 
practice in April, 1994. I have recovered and function as 
well as before the episode and surgery. 

Since October, 1993, examinations are ongoing every 
three (3) to five (5) months. 

14. Judicial Office : State (chronologically) any judicial 
offices you have held, whether such position was elected or 
appointed, and a description of the jurisdiction of each 
such court. 

None. 



15. Citations : If you are or have been a judge, provide: 

(1) citations for the ten most significant opinions you have 
written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or 
where your judgment was affirmed with significant criticism 
of your substantive or procedural rulings; and (3) citations 
for significant opinions on federal or state constitu- 
tional issues, together with the citation to appellate court 
rulings on such opinions. If any of the opinions listed 
were not officially reported, please provide copies of the 
opinions. 

Not applicable. 

16. Public Office : State (chronologically) any public offices 
you have held, other than judicial offices, including the 
terms of service and whether such positions were elected or 
appointed. State (chronologically) any unsuccessful 
candidacies for elective public office. 

1968-1974 - Member of Fairview Township Zoning Commission 
Appointed by the Board of Supervisors of Fairview Township. 
This was a non-paying position. I have never run for public 
office. 



17 . Legal Career : 

a. Describe chronologically your law practice and 
experience after graduation from law school 
including: 

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A. Richard Caputo 



1. whether you served as clerk to a judge, and 
if so, the name of the judge, the court, and 
the dates of the period you were a clerk; No. 

2. whether you practiced alone, and if so, 
the addresses and dates; No. 

3. the dates, name and addresses of law firms 

or offices, companies or governmental agencies 
with which you have been connected, and the 
nature of your connection with each; 

August 1963-Septerober 1964 : Charles A. Shea, Jr., Esquire 
626 First Eastern Bank Bldg. , Wilkes-Barre, 
Pennsylvania, 18701; research, drafting pleadings, 
briefs and memoranda. 

September 1964-September 1967 : U.S. Air Force (JAG), 
Plattsburgh AFB, New York; trial and defense counsel. 

January-September 1968 : Public Defender for Luzerne 
County; represented indigent defendants in criminal 
cases. 

September 1967-present : Shea, Shea & Caputo, 626 
First Eastern Bank Building, Wilkes-Barre, PA, 18701 
until 1982; 310 Bicentennial Building, Wilkes-Barre, 
PA, 18701 until October, 1994; and, 387 Wyoming Avenue, 
Kingston, PA, 18704 from October, 1994 to present, 
office principal; general practice with emphasis on 
construction and commercial litigation and multiemployer 
pension plan law. 



b. 1. What has been the general character of your law 
practice, dividing it into periods with dates, 
if its character has changed over the years? 



1963-4 : Research, drafting of briefs, memoranda and 
pleadings in civil matters 

1964-7 : Trial and defense counsel in six (6) General 
Courts-martial (criminal) , ten (10) Special Courts- 
martial (criminal) , and in excess of 20 Administrative 
Elimination Review Hearings (civil) 

1967-9 : Criminal trials, extensive work on numerous 
federal actions for collection of pension contributions, 
research, memoranda, briefs, pleadings and motions 

1970-present ; General practice, litigation and arbi- 
tration, multiemployer pension plan law, construction law 



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A. Richard Caputo 



Describe your typical former clients and mention 
the areas, if any, in which you have 
specialized. 



Clients: 



A multiemployer pension plan; several contractors; 
numerous small businesses; and numerous individuals 
and families from all walks of life. 

Specialization ; 

General practice with emphasis on commercial litigation; 
construction contract disputes; federal law relating to 
multiemployer pension plans. 



c. 1. Did you appear in court frequently, 

occasionally, or not at all? If the frequency 
of your appearances in court varied, describe 
each such variance, giving dates. 

For the past fifteen (15) years, I have appeared in 
court six (6) to ten (10) times annually. From 1967 
to 1980, I appeared in court more frequently, viz twelve 
(12) to eighteen (18) times annually. 

2. What percentage of these appearances was in: 

(a) federal courts; 70% 

(b) state courts of record; 30% 

(c) other courts. N/A 



3. What percentage of your litigation was: 

(a) civil; 99% 

(b) criminal. 1% 



4 . State the number of cases in courts of record 
you tried to verdict or judgment (rather than 
settled) , indicating whether you were sole 
counsel, chief counsel, or associate counsel. 

Approximately thirty-six (36) . I approximate 
because as a public defender I cannot recall the exact 
number. I know I had at least ten (10) jury trials and 
ten (10) non-jury trials. Therefore, I am certain of at 
least sixteen (16) trials to verdict or judgment. In 
all but two (2) , I was sole or chief counsel. 



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A. Richard Caputo 



5. What percentage of these trials was: 

(a) jury; 52.8% 

(b) non-jury. 47.2% 

18. Litigation : Describe the ten most significant litigated 

matters which you personally handled. Give the citations, 
if the cases were reported, and the docket number and date 
if unreported. Give a capsule summary of the substance of 
each case. Indentify the party or parties whom you 
represented; describe in detail the nature of your partici- 
pation in the litigation and the final disposition of the 
case. Also state as to each case: 



(a) the date of representation; 

(b) the name of the court and the name of the judge or 
judges before whom the case was litigated; and 

(c) the individual name, addresses, and telephone 
numbers of co-counsel and of principal counsel for 
each of the other parties. 

1. Lakeland School District Authority and Lakeland School 
District v. The Sutter Corporation; Albert A. Miller, t/a Phoenix 
Roofing and Supply Company and Albert Miller, individually ; 
Celotex Corporation; Bellante Clauss & Partners and Joseph 
Bianca. Jr. . Civil Action No. 190 September Term 1979 (Lackawanna 
County Court of Common Pleas) . 

In this case, I represented defendant. The Sutter 
Corporation, a general contractor who contracted with plaintiffs 
to build a new high school according to the plans and specifica- 
tions of the defendant architects, Bellante Clauss & Partners and 
Joseph Bianca, Jr. Sutter entered into a contract with 
defendant, Albert A. Miller t/a Phoenix Roofing, to install the 
roof and defendant, Albert A. Miller t/a Phoenix Roofing, pur- 
chased the roofing products from defendant, Celotex Corporation. 

The school was constructed by Sutter, the Celotex built-up 
roof installed by Miller, t/a Phoenix Roofing, and shortly 
thereafter, and while students were in attendance, the roof began 
to leak profusely. Ultimately, the roof failed, and it was 
replaced by the plaintiffs with a rubber roof at a cost some 
seven (7) times the amount of Sutter's agreement with Miller, t/a 
Phoenix Roofing. 



233 



A. Richard Caputo 



Action was instituted against the defendants on the theories 
of breach of warranty and negligence. Defendant, Bianca, settled 
immediately and secured a joint tortfeasor release. All other 
defendants answered and cross claimed against each other. 

The case was tried before a jury. The trial lasted three 
(3) weeks, at the end of which the jury returned a verdict in 
excess of $900,000.00 against Sutter (34%) Miller, t/a Phoenix 
Roofing (33%), Celotex (32%) and Bianca (1%). 

After an appeal was filed, the case was settled. 

My involvement was as sole counsel for defendant, Sutter. 
The trial preparation was extensive and involved four (4) experts 
on built-up roofing. My preparation for their cross examinations 
involved educating myself about a myriad of technical data con- 
cerning built-up roofing and the careful review of the reports of 
the experts. The other preparation related to the engineering 
involved in the parapet wall design and the connections of the 
structural steel at the top of the building. 



(a) 1982. 

(b) The Honorable John J. Cottone 

Judge of the Court of Common Pleas of Lackawanna County 

(c) Counsel for defendant. Miller, t/a Phoenix Roofing 

Company 

James E. O'Brien, Sr. , Esquire (deceased) 
Kennedy, O'Brien, McCormack & Mulcahey 
Suite 700 Scranton Life Building 
538 Spruce Street 
Scranton, PA 18503-1808 
(717) 342-0151 

Counsel for defendant, Celotex Corporation 

Christopher K. Walters, Esquire 
Reed Smith Shaw & McClay 
2500 One Liberty Place 
Philadelphia, PA 19103-7301 
(215) 851-8100 



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A. Richard Caputo 



Counsel for defendant, Joseph Bianca, Jr. 

James M. Howley, Esquire 

Scanlon, Howley, Scanlon & Doherty 

321 Spruce Street 

Scranton, PA 18503 

(717) 946-7651 

Opposing Counsel: James A. Kelly, Esquire 

1500 South Webster Avenue 
Scranton, PA 18501 
(717) 346-1735 

John Krisa, Esquire 

Krisa, McDonough & Cosgrove 

Route 6 

Blakely, PA 18447 

(717) 383-3205 

2 . Emmett Thomas. Nicholas J. Haydock and John D. Jillson . 
Trustees of the Anthracite Health and Welfare Fund v. Blue Coal 
Corporation . Civil Action No. 71-46 (M.D.Pa.), 355 F.Supp. 510 
(M.D.Pa.), aff'd by judgment order sub nom., Savitskv v. Blue 
Coal Corp. . 485 F.2d 681 (3d Cir. 1973). 

This was a case in which my client, the plaintiffs. 
Trustees of the Anthracite Health and Welfare Fund, a 
multiemployer pension fund, brought suit against the defendant, 
Blue Coal Corporation, to recover contributions alleged to be due 
the plaintiffs. Defendant was obligated to make pension contri-' 
butions to the plaintiffs on the basis of anthracite (coal) it 
"produced for use or for sale." 

Defendant had purchased discolored anthracite from a third 
party which was not a party to the collective bargaining agree- 
ment which required parties such as the defendant to contribute a 
per ton royalty contribution to plaintiffs on anthracite the 
party "produced for use or for sale." The discolored coal had 
been processed through the third party's preparation plant and 
was saleable as coal, but because of its color, it would not 
bring the price of non-discolored coal. After defendant pur- 
chased the coal, it ran it through its processing plant with its raw 
coal, and as a result, blended it with a non-discolored product 
thereby reducing its notoriety. The defendant did not pay plain- 
tiffs a royalty on the quantity of purchased discolored coal 
although it did pay on the finished coal with which it was 
blended in the process mentioned above. Plaintiffs brought an 
action seeking the royalty contributions on the discolored coal 
on the theory it had been produced for use or sale by the 
defendant. 



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A. Richard Caputo 



The case was tried before a judge without a jury, and the 
court determined that plaintiffs were not entitled to recover 
because the subject coal had already been "produced for use or 
for sale" before it arrived at defendant's plant. The court said 
subsequent processing was irrelevant. I was sole counsel 
for plaintiffs. 

The case was appealed, and the decision was affirmed without 
opinion. 

This case is significant in that it set a precedent in the 
anthracite industry with respect to the point at which 
"production for use or sale" occurs and hence when more impor- 
tantly in cases such as this, whether a contribution is due. 

(a) 1972. 

(b) The Honorable Malcolm Muir 

Judge of the United States District Court for the 
Middle District of Pennsylvania 

(c) Opposing Counsel: James E. O'Brien, Sr. , Esquire 

(deceased) 
Kennedy, O'Brien, McCormack & 

Mulcahey 
Suite 700 Scranton Life Building 
538 Spruce Street 
Scranton, PA 18503-1808 
(717) 342-0151 

3. H. Eugene Wagner v. Corey E. Wagner, et al. . Civil No. 27 
of 1972 (Luzerne County Court of Common Pleas) ; No. 611 of 1974 
(Supreme Court of Pennsylvania, Eastern District); 466 Pa. 532, 
353 A. 2d 819 (1976) . 

This was a suit by a father against his children to establish 
his claim to ownership of the stock of a corporation. He had, 
through his attorney, formed a corporation which bought a piece 
of real estate, its sole asset, and subsequently informed his 
children that he was making a gift of the corporation to them. 
He instructed his attorney to issue the stock certificates to the 
children. This was never done in completed fashion, and a year 
later, the father brought the suit and the children defended on 
the basis that the complete gift had been made. I represented 
the children and the case was tried in the Luzerne County Court 
of Common Pleas in equity before The Honorable Bernard J. 
Brominski, P.J. Judge Brominski found for my clients, the 
Defendants. The Court en Banc overruled the Plaintiff's 
exceptions. On appeal, the Pennsylvania Supreme Court affirmed. 
The decision is reported in 466 Pa. 532, 353 A. 2d 819 (1976). 



236 



A. Richard Caputo 



This case is significant because it presented the difficult 
problems of having to represent children who were being sued by a 
parent. These children were people who had, throughout their 
childhood, and most of their adult lives, been extremely close to 
their father. The series of cases involved in the complete sce- 
nario were the domestic breakup of the mother and father; the 
dissolution of the family construction business; the upsetting 
of liens of the Small Business Administration wrongfully extended 
by the father to the assets of the family business as well as the 
corporation, the subject of the foregoing suit; the accounting by 
the father of the business of the family partnership 
(construction business) ; and proceedings before the United States 
Tax Court. The emotional problems occasioned by such litigation 
were, of course, delicate. The handling of legal problems with 
the undercurrent of family disharmony was significant in my 
development as a lawyer. 

(a) 1972-4. 

(b) The Honorable Bernard J. Brominski (Trial Judge) 
The Honorable Richard L. Bigelow (deceased) 

The Honorable Robert J. Hourigan (deceased) 

The Honorable Peter P. Olszewski (now a Judge of the 

Superior Court of Pennsylvania) 
The Honorable Bernard J. Podcasy 
The Honorable Arthur D. Dalessandro 
Luzerne County Court of Common Pleas en Banc 
and Supreme Court of Pennsylvania, Eastern District 

(c) Opposing Counsel: William J. Taylor, Esquire 

Taylor & Taylor 
Suite 811 

Ten Penn Center Plaza 
1801 Market Street 
Philadelphia, PA 19103 
(215) 568-2644 

Lawrence I. Washor, Esquire 
address unknown 



4. Commonwealth of Pennsylvania v, Gregory Reap . No. 675 of 
1984, No. 676 of 1984 (Luzerne County Court of Common Pleas). 

In this case, I represented a twenty-two (22) year old 
defendant accused of aggravated assault and battery and simple 
assault. The facts of the case are typical. Four (4) young men 
were out drinking at a local singles bar. When they spoke to two 
(2) young women, who they thought were unescorted, their spouses 
suddenly appeared. Words ensued and all parties were asked to 
leave. The controversy continued in the parking lot and onto the 
highway, where threats and challenges resulted in the vehicles 



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A. Richard Caputo 



stopping and a physical confrontation taking place. The defendant 
and his three (3) male friends were pitted against the two (2) 
husbands, each of whom was bigger and stronger than the defendant 
and his friends. The defendant said that in order to protect one 
(1) of his friends, he hit one (1) husband on the head with a 
rock. This resulted in a serious head wound and other injuries. 
The other husband was beaten about the head and face with fists. 
The defendant and his friends suffered minor injuries. 

The defendant and two (2) of his friends were tried 
before a jury and convicted after four (4) days of trial. An 
unsuccessful appeal followed, and the defendant, who had no prior 
record, was sentenced to ten (10) years probation and ordered to 
pay restitution. 

I acted as chief trial counsel and prepared all defense 
witnesses. I also prepared the cross examinations of the 
prosecution witnesses, which involved the review of extensive 
prior testimony. 

(a) 1985. 

(b) The Honorable Arthur D. Dalessandro 

Judge of the Court of Common Pleas of Luzerne County 

(c) Co-Counsel: Cynthia A. Smith, Esquire (now by 

marriage Cynthia A. Muroski, Esquire) 
Shea, Shea & Caputo 
3 87 Wyoming Avenue 
P.O. Box 2059 
Kingston, PA 18704 
(717) 288-5020 

Opposing Counsel: Joseph G. Albert, Esquire 
Albert, Dingle, Russin, 

Sklarosky, Sieminski & Kamage 
1575 Wyoming Avenue 
Forty Fort, PA 18704 
(717) 283-1200 

5 . Leo R. Corgan v . Kingston Metal Specialties Co. . William 
Dickson. Jr.. Robert Oeller and Jeff Dickson . Civil Action No. 
352-C of 1987 (Luzerne County Court of Common Pleas) . 

I represented the plaintiff who brought suit against the 
defendants to recover damages for cutting down some ninety (90) 
mature trees on the plaintiff's property. 



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A. Richard Caputo 



Defendant, Kingston Metal Specialties, owned by the Dicksons, 
was a land owner which adjoined the plaintiff's property. 
Defendants' property was higher than plaintiff's and was visible 
in the winter from an expressway artery serving the largest con- 
centration of population in the county. In the spring and summer, 
the mature trees on plaintiff's land obscured the view of 
defendants' business establishment from that road. The 
defendants, claiming they did not know it was plaintiff's land, 
entered the land and cut down some ninety (90) mature trees. 

Because of the intentional acts of the defendants, the 
plaintiff also sought punitive damages. 

The case was tried before a jury. I acted as chief counsel. 
The jury returned a verdict for the plaintiff for both damages 
and punitive damages in the amount of $15,000.00 and $780.00, 
respectively . 

There were several damage theories viz diminishment of value 
of the real estate, loss of the value of the trees, replacement 
cost as a measure of damages, damages for the trespass and 
whether exemplary damages were appropriate. There were expert 
witnesses on land value and tree replacement cost. 

I mention this case because it involved a dispute about 
fundamental real property rights. 

(a) 1990. 

(b) The Honorable Bernard C. Brominski 

Judge of the Court of Common Pleas of Luzerne 
County 

(c) Co-counsel: J. Thomas Shea, Esquire (deceased) 

Shea, Shea & Caputo 

Opposing Counsel: Charles A. Shaffer, Esquire 
Mahler, Shaffer & Pugliese 
541 Pierce Street 
Kingston, PA 18704 
(717) 283-1800 
Counsel for Kingston Metal 
Specialties Company and Dicksons 

Charles R. Coslett, Esquire 
COSLETT & COSLETT 
312 Wyoming Avenue 
Kingston, PA 18704 
(717) 288-4517 
Counsel for Oeller 



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A. Richard Caputo 



6. Division Two. Inc. v. Linde Enterprises. Inc. . Civil 
Action No. 86-0942 (M.D.Pa.). 

In this case, I represented the plaintiff. Division Two, 
Inc., a dewatering contractor from Denton, Maryland. Plaintiff 
brought an action against the defendant, a Pennsylvania utilities 
contractor, for the balance due on a contract to dewater a site 
for the defendant. The defendant counterclaimed for defective 
performance and failure to cure. The counterclaim exceeded the 
claim ($75,000.00 to $126,481.00). 

The case was tried before a jury in May, 1987. I acted as 
sole counsel. My involvement was trial preparation as well 
as the conduct of trial. Preparation included preparing 
witnesses, reviewing and learning technical data regarding the 
dewatering process, the design of the dewatering holes and the 
preparation of cross examinations of defendant's witnesses 
including an expert on dewatering. The case also involved a 
parol evidence issue, since the defendant sought to introduce evi- 
dence at variance with the written agreement between the parties. 
The parol evidence issue was resolved favorably by the court. 

After a four (4) day trial, the jury returned a verdict in 
favor of plaintiff of $56,250.00 and in favor of the defendant on 
the counterclaim of $18,618.00. No appeal was taken. 

(a) 1987. 

(b) The Honorable William J. Nealon 

Judge of the United States District Court for the Middle 
District of Pennsylvania 

(c) Opposing counsel: Raymond P. Wendolowski, Esquire 

Koff, Wendolowski, Ferguson & Mangan 
22 East Union Street 
Wilkes-Barre, PA 18701 
(717) 822-5600 

7. Uniqraphic-Color Corporation v. Mobil Oil Corporation and 
Petroleum Service Company . Civil Action No. 1675-C of 1985 
(Luzerne County Court of Common Pleas) 

This was a jury trial in which I acted as chief trial . 
counsel. The case involved a claim against Mobil Oil and its 
distributor for breach of warranty, product liability and 
negligence. The plaintiff was a printing company, and it intro- 
duced the Defendant Mobil's oil product into two (2) of its large 
printing presses. The presses had thousands of moving parts 
which required constant lubrication. The presses, which were of 
superior quality in the industry, began to experience mechanical 



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A. Richard Caputo 



failures and breakdowns. In fact, the failures and breakdowns far 
exceeded what could be considered normal experience. Further 
complicating the process was the fact that the printed product 
produced in the presses became inferior and unclear. When a tar- 
like substance was discovered in the oil in the presses, the 
plaintiff sought to establish that Mobil oil was contaminated 
with asphalt, and that the oil had been delivered in that 
condition. 

After a trial of approximately two (2) weeks and the 
testimony of several witnesses, including two (2) expert wit- 
nesses in the field of spectography, an engineer who expressed 
the opinion that the contiminated oil caused the catastrophic 
failure of the presses, and an engineer who was an expert on the 
maintenance of operation of these particular presses, the jury 
returned a defense verdict. 

My preparation in this case involved becoming familiar 
with a voluminous maintenance manual for the presses, as well as 
the cross examinations of the experts in spectography and the 
maintenance and operation of the presses. 

(a) 1988. 

(b) The Honorable Gifford R. Cappellini 

Judge of the Court of Common Pleas of Luzerne County 

(c) Co-Counsel: Charles A. Shea, III, Esquire 

Shea, Shea & Caputo 
387 Wyoming Avenue 
P.O. Box 2059 
Kingston, PA 18704 
(717) 288-5020 

Opposing Counsel: Edward F. Mannino, Esquire 
Mannino Griffith, P.C. 
2400 One Commerce Square 
Philadelphia, PA 19103 
(215) 851-6300 

Thomas J. Elliott, Esquire 
Elliott, Reihner, Siedzikowski, 

North & Egan, P.C. 
Union Meeting Corporate Center V 
925 Harvest Drive 
Blue Bell, PA 19422 
(215) 977-1000 



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A. Richard Caputo 



8. Interfacts America. Inc. v. Dr. Jalal B. Fatemi . Civil 
Action No. 85-0609 (M.D.Pa.). 

I was chief counsel for a plaintiff, private investigator, 
which brought suit against a client for the payment of fees for 
services performed. The defendant, while not denying the engage- 
ment, disputed the extent of services provided and contended 
nothing was due. 

The facts revealed the defendant engaged plaintiff to find 
his children, whom he advised had been kidnapped by his wife with 
whom he was having domestic difficulties. The plaintiff's people 
performed investigative services such as surveillance, record 
checking, personal inquiries and other related activities. The 
performance of these services took them from Wilkes-Barre, 
Pennsylvania, to Baltimore, Maryland, to Savannah, Georgia. 
Unfortunately, the plaintiff never found the defendant's 
children. The contract between the parties was oral and provided 
for the payment of services at hourly rates regardless of whether 
or not the children were found. 

The case was tried before a jury which, after three (3) days 
of trial, returned a verdict in favor of the plaintiff for 
approximately fifty percent (50%) of the amount claimed. 

My involvement in the case consisted of discovery, the review 
of my client's billing records and time records, the preparation 
of plaintiff's witnesses and the preparation of cross examina- 
tions of defendant and his witnesses. 



(a) 1986. 

(b) The Honorable William J. Nealon 

Judge of the United States District Court for the 
Middle District of Pennsylvania 

(c) Opposing Counsel: Arthur L. Piccone, Esquire 

Ronald V. Santora, Esquire 
Hourigan, Kluger, Spohrer & 

Quinn, P.C. 
700 Mellon Bank Center 
8 West Market Street 
Wilkes-Barre, PA 18701 
(717) 825-9401 

9. The Sutter Corporation v. Girard Bank . Civil Action 
No. 82-C of 1980, (Luzerne County Court of Common Pleas). 

In this case, I represented the plaintiff, a general 
contractor, who brought suit against Girard Bank to recover for 
the balance due plaintiff for the construction of an office 



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A. Richard Caputo 

building in Wilkes-Barre, Pennsylvania. The plaintiff had a 
construction agreement with the owner, who never paid the balance 
due on the contract, and ultimately sought bankruptcy protection. 
Defendant, Girard Bank, had entered into a loan agreement with 
owner to provide owner the funds to construct the building. The 
construction agreement was in the amount of $1,730,000.00 and the 
loan agreement was for $1,600,000.00. The plaintiff was not a 
party to the loan agreement. The defendant, Girard Bank, drafted 
and caused the owner and the contractor to execute a document 
providing for the assignment, at Girard' s option, of the con- 
struction contract to Girard. All payments to plaintiff were 
made by Girard; Girard failed to require owner to deposit 
sufficient funds in excess of the loan commitment of 
$1,600,000.00 to build the building, despite a requirement in the 
loan agreement to do so; Girard contracted with plaintiff's sub- 
contractors to do work on the building, bypassing the plaintiff's 
contractual relationship with those subcontractors; and, Girard 
failed to pay plaintiff, despite Girard's inspecting architect's 
commitment to pay for all work and change orders if the plaintiff 
would complete the project. 

Girard contended it had not triggered the assignment 
because it had not given written notice it was doing so. Plain- 
tiff argued that by its actions, Girard had indeed triggered the 
assignment and stood in the shoes of the owner. Girard also con- 
tended its inspecting architect was not its agent and that it was 
therefore not bound by what he said. 

The case was tried before a jury in November, 1994. At the 
conclusion of five (5) days of trial, the jury returned a verdict 
for the plaintiff on all theories of liability, namely: 
(a) Girard exercised its rights of assignment, took over the con- 
struction contract, and breached it by its failure to pay; (b) 
the architect was the agent of Girard, promised payment, and 
Girard was bound to pay; (c) Girard made material misrepresenta- 
tions to plaintiff and was liable therefor; and, (d) Girard 
intentionally interfered with the contractual relations between 
the plaintiff and its subcontractors. 

I acted as chief trial counsel. I prepared all witnesses for 
the plaintiff and the cross examination for each defense witness. 
Preparation involved becoming completely familiar with the operative 
contracts, the job conference minutes, the payment requisitions 
and correspondence. 

The Superior Court of Pennsylvania reversed on the basis of 
the lower court's denial of defendant's pretrial motion for non 
pros. A petition for allowance of appeal to the Supreme Court of 
Pennsylvania was denied. 

(a) 1994. 

(b) The Honorable Hugh F. Mundy 

Judge of the Court of Common Pleas of Luzerne County 

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A. Richard Caputo 



(c) Co-counsel; 



Joseph A. Dente, Esquire 
Shea, Shea & Caputo 
3 87 Wyoming Avenue 
P.O. Box 2059 
Kingston, PA 18704 
(717) 288-5020 



Opposing Counsel: 



James C. Ingram, Esquire 

Michael K. Sullivan, Esquire 

Drinker, Biddle & Reath 

134 5 Chestnut Street 

Suite 1100 

Philadelphia National Bank Bldg. 

Philadelphia, PA 19107 

(215) 988-2700 



10. Frank J. Valvano and Pamela B. Valvano. his wife v. 
Joseph E. Galardi and Kaye L. Galardi. his wife . Civil No. 48 of 
1984 (Lackawanna County Court of Common Pleas), aff'd, Frank J. 
Valvano and Pamela B. Valvano. his wife v. Joseph E. Galardi and 
Kaye L. Galardi. his wife . 363 Pa. Super. 584, 526 A. 2d 1216 
(1987) . 

In this case I was sole counsel representing a husband and 
wife who were defendants in an action for specific performance of 
an agreement to provide a right-of-way. 

The defendants entered into an agreement to buy ten (10) 
acres of thirty (30) which v;ere owned by the plaintiffs. An 
agreement of sale was prepared by a broker, signed by the defen- 
dants and submitted to plaintiffs who rejected the agreement and 
offered an amendment to the agreement which was signed by the 
plaintiffs and the male defendant only. The amendment provided 
an option to the defendants to buy the remaining twenty (20) 
acres within two (2) years, and it provided for a right-of-way to 
plaintiffs in the event the option was not exercised. The trans- 
action of purchase closed, the two (2) years expired, and the 
defendants did not exercise the option. Thereafter, the defen- 
dants refused access to the plaintiffs, and the plaintiffs 
brought an action for specific performance of the agreement and 
the amendment to agreement. The female defendant testified she 
was not aware of the amendment until two (2) years after closing. 

The plaintiffs contended that the defendants performed the 
amendment by closing the transaction and thereby acknowledging de 
facto the terms of the agreement. They contended that part per- 
formance took the matter outside of the Statute of Frauds. 
Defendant contended that the Statute of Frauds prevented the 
action for specific performance of the right-of-way because the 
female defendant never executed the agreement or the amendment to 
the agreement. 



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A. Richard Caputo 



The trial judge, sitting without a jury, in equity, agreed 
with the plaintiffs and entered a decree of specific performance. 
The defendants appealed, and the lower court was affirmed. 

The trial of this case presented issues of credibility as 
well as issues of law. The court simply did not believe the 
female defendant on the issue of her awareness of the amendment. 
It was my contention that the failure of execution by a wife in 
these circumstances violated the Statute of Frauds and did not 
permit the forced performance of the amendment against her. 
Neither court agreed with me. 



(a) 1987. 

(b) The Honorable James Munley 

Judge of the Court of Common Pleas of Lackawanna 
County 

(c) Opposing Counsel: William J. Oliver, Esquire 

(deceased) 
Oliver, Price and Rhodes 
Suite 300 - 200 Penn Avenue 
P.O. Box 1409 
Scranton, PA 18501 
(717) 343-6581 



For further reference, I include the following list of judges 
and counsel with whom I have been involved in various matters in 
the past two (2) years: 

1. Michael Beltrami, Esquire 
1110 South Church Street 
Hazleton, PA 18201 

(717) 459-1491 

2. Martin J. Cerullo, Esquire 
CERULLO, DATTE & WALLBILLICH, P.C. 
Second Street & Laurel Boulevard 
P.O. Box 450 

Pottsville, PA 17901 
(717) 622-0767 

3. Ruth S. Borland, Esquire 
BORLAND & BORLAND 

Suite 1100, PNC Bank Building 
69 Public Square 
Wilkes-Barre, PA 18701 
(717) 822-3311 



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A. Richard Caputo 



4. Morton F. Daller, Esquire 
DALLER, GREENBERG & DIETRICH 
Valley Green Corporate Center 
7111 Valley Green Road 

Fort Washington, PA 19034 
(215) 836-1882 

5. Michael B. Sacks, Esquire 
10 Fairfield Drive 
Short Hills, NJ 07078 
(215) 912-9679 

6. George A. Spohrer, Esquire 
4 00 Third Avenue 

Suite 101 
Kingston, PA 18704 
(717) 287-1156 

7. The Honorable William J. Nealon 
United States District Court for 

the Middle District of Pennsylvania 
23 5 North Washington Street 
P.O. Box 1148 
Scranton, PA 18501 
(717) 344-9619 

8. The Honorable Edwin M. Kosik 
United States District Court for 

the Middle District of Pennsylvania 
235 North Washington Street 
P.O. Box 1148 
Scranton, PA 18501 
(717) 344-2124 

9 . The Honorable Thomas I . Vanaskie 
United States District Court for 

the Middle District of Pennsylvania 
235 North Washington Street 
P.O. Box 1148 
Scranton, PA 18501 
(717) 344-0125 

.0. The Honorable Correale F. Stevens 

Luzerne County Court of Common Pleas 
2 00 North River Street 
Wilkes-Barre, PA 18711 
(717) 825-1723 



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246 



A. Richard Caputo 



19, Legal Activities ; Describe the most significant legal 

activities you have pursued, including significant litigation 
which did not progress to trial or legal matters that did not 
involve litigation. Describe the nature of your participation in 
this question, please omit any information protected by the 
attorney-client privilege (unless the privilege has been waived.) 

1. International Union of United Brewery. Flour. Cereal. 
Soft Drink and Distillery Workers of America. AFL-CIO. et al. v. 
Stegmaier Brewing Company, et al. . Civil No. 70-556 (M.D.Pa.). 

This case involved a suit by a decertified bargaining agent 
of a bargaining unit comprised of two (2) local breweries to com- 
pel arbitration toward the termination of the employee benefit 
plan theretofore established and maintained by the employers and 
the decertified bargaining agent. I represented one (1) of the 
breweries, the Stegmaier Brewing Company, which was also one (1) 
of the defendants. 

In addition to the facts revealed by the foregoing paragraph, 
a new bargaining agent had been certified by the N.L.R.B. and on 
the defendants' Motion for Summary Judgment the question was 
whether the new bargaining agent should be substituted, as a 
matter of law, on the panel of fund trustees in the place of the 
decertified bargaining agent as the representative of the employ- 
ees thereon within the meaning of §302 of the National Labor 
Relations Act, as amended, 29 U.S.C. §186. 

I argued on 'behalf of the defendant company and contended 
that the newly certified union should be substituted in place of 
the old union for purposes of representing the employee interests 
on the governing body of the jointly administered pension trust 
and that, consequently, the plaintiffs had no standing to compel 
arbitration. This position was sustained and a summary judgment 
was granted by Judge Muir. An appeal to the Third Circuit 
followed, but subsequent to the submission of briefs and 
appendices, the appeal was abandoned. 

I view this case as significant because it concerned a point 
of federal labor law not theretofore directly decided, viz: by 
what authority could it be said that a newly certified bargaining 
agent represented retired personnel as a trustee of a jointly 
administered trust when the authority conferred on it as a bar- 
gaining agent under the Act did not extend to retired personnel. 
The resolution of the issue involved the determination of the 
extent of that authority in the newly certified bargaining agent 
under the federal common law of collective bargaining agreements, 
not under federal statutory law. 

(a) 1970-1. 

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A. Richard Caputo 



(b) The Honorable Malcolm Muir 

Judge of the United States District Court for the Middle 
District of Pennsylvania 

(c) Co-counsel: S. Keene Mitchell, Esquire (deceased) 

Edward Darling, Esquire (deceased) 
Darling, Mitchell & Schooley 
Mellon Bank Center 
Wilkes-Barre, PA 18701 
(717) 822-8195 

Allan M. Kluger, Esquire 

Hourigan, Kluger, Spohrer & Quinn, P.C. 

700 Mellon Bank Center 

8 West Market Street 

Wilkes-Barre, PA 18701 

(717) 825-9401 

Alan R. Howe, Esquire 

53 Park Avenue 

Unit 205 

P.O. Box 34 

Scotch Plains, NJ 07076 

(908) 322-8184 

Opposing Counsel: Bernard N. Katz, Esquire 
Meranze and Katz 
12th Floor 

Lewis Tower Building 
N.E. Corner 15th and Locust Street 
Philadelphia, PA 19102-3977 
(215) 546-4183 

2. Commonwealth of PA v. Chas. S. Grucella . Criminal No. 
1343 of 1967, (Luzerne County Court of Common Pleas). 

Upon the election of a new District Attorney in Luzerne 
County, the successful candidate hired seven (7) assistants, 
three (3) of whom were immediate past members of the staff of the 
Public Defender of Luzerne County. Since in excess of twenty- 
five (25) cases wherein the defendants were represented by the 
Public Defender's Office were to be tried in the first term of 
Criminal Court handled by the new District Attorney, the question 
was presented as to whether or not the foregoing facts did not 
present such an appearance of a conflict of interest, if not an 
actual conflict in some cases, sufficient to cause the disquali- 
fication of the entire District Attorney's staff from prosecuting 
the cases where the defendants were represented by the Public 
Defender. 



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248 



A. Richard Caputo 



In advance of the commencement of the new term of Criminal 
Court, we of the Public Defender's Office filed a motion to 
disqualify the District Attorney and his staff from prosecuting any 
cases against defendants represented by the Public Defender's 
Office. 

I argued the case for the Public Defender's Office before the 
Court of Common Pleas of Luzerne County en Banc. The Court en 
Banc ultimately decided the matter adversely to the position I 
advanced on behalf of the Public Defender, two (2) members dis- 
senting (3 to 2) . An unsuccessful appeal later followed. 

I view this case as significant because it presented a ques- 
tion of the public confidence in a public official on the one 
hand and the integrity of the prosecutorial system as it related 
to Public Defender clients, present and future, on the other. 

(a) 1968. 

(b) The Honorable Bernard C. Brominski 

The Honorable Richard L. Bigelow (deceased) 

The Honorable Jacob Schiffman (deceased) 

The Honorable Robert J. Hourigan (deceased) 

The Honorable Peter P. Olszewski (now a Judge of the 

Superior Court of Pennsylvania) 
Luzerne County Court of Common Pleas en Banc 

(c) Co-counsel: William R. Keller, Esquire 

1111 Mellon Bank Center 
8 West Market Street 
Wilkes-Barre, PA 18701 
(717) 822-6138 

Peter J. Webby, Esquire (deceased) 
Northeastern Bank Building 
Wilkes-Barre, PA 18701 
(717) 824-3161 

John E. O'Connor, Esquire 
14 60 Wyoming Avenue 
Forty Fort, PA 18704 
(717) 288-6441 

Joseph C. Giebus, Esquire 
2 Oakwood Drive 
Laflin, PA 18702 

Opposing Counsel: The Honorable Patrick J. Toole 
President Judge 

Luzerne County Court of Common Pleas 
Luzerne County Courthouse 
200 North River Street 
Wilkes-Barre, PA 18711 
(717) 825-1667 

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249 



A. Richard Caputo 



Blythe H. Evans, Jr., Esquire 
1013 PNC Bank Building 
69 Public Square 
Wilkes-Barre, PA 18701 
(717) 825-6601 

S. Keene Mitchell, Esquire (deceased) 
Darling, Mitchell & Schooley 
Mellon Bank Center 
Wilkes-Barre, PA 18701 
(717) 822-8195 

3 . Frank J. Galqay and Francis P. Bonner. Trustees of the 
Anthracite Health and Welfare Fund and the Anthracite Health 
and Welfare Fund v. Gil-Pre Corporation . Civil No. 86-1363 
(M.D.Pa. 198 6); Frank J. Galqay and Francis P. Bonner. Trustees 
of the Anthracite Health and Welfare Fund and the Anthracite 
Health and Welfare Fund v. Gilberton Energy Corporation . Civil 
No. 86-1364 (M.D.Pa. 1986) ; aff'd on other grounds, Frank J. 
Galqay. et al. v. Gil-Pre Corporation . No. 88-5200 (3d Cir. 
1988) ; aff'd on other grounds, Frank J. Galqay. et al. v. 
Gilberton Enerqy Corporation . No. 88-5201 (3d Cir. 1988) ; aff'd 
on other grounds, Galqay v. Gil-Pre Corp. , 864 F.2d 1018 (3d Cir. 
1988) . 

This began as a suit by the Anthracite Health and Wel- 
fare Fund (the "Fund"), the multiemployer pension plan which 
involves retired anthracite miners and the anthracite industry 
employers, against one (1) of the employers, Gil-Pre Corporation, 
to recover pension fund contributions in the form of tonnage 
royalties. The operative collective bargaining agreement pro- 
vided that a royalty was due the Fund on all anthracite "produced 
for use or for sale" by an anthracite operator or employer. The 
quoted language had been in all industry collective bargaining 
agreements dating back to 1946 and as of the time of the suit, 
the number was fourteen (14) . The entire industry was organized 
until the late 1960's, and this language was taken to mean that 
the royalty was due when the anthracite was prepared in a coal 
breaker. It could have been when the coal was mined, but since 
there was verified measurement (weighmasters) and sale to con- 
sumers after it was finished in the coal breaker, the parties 
interpreted the key phrase to mean the royalty was due after the 
raw mined coal was prepared in the coal breaker. 

Two (2) things changed in the industry. First, the 
industry was no longer completely organized after the late 
1960's. Indeed, more and more operators were nonunion to the 
point where today over one-half of the total production of 
anthracite is produced by nonunion operators. Second, techno- 
logical advances in the utilization of anthracite permitted what 
had been waste to be used as a fuel without the necessity of coal 
breaker preparation. The employers sought to exclude production 
from royalty on the basis that it did not go through the breaker 
process. Gil-Pre was such a case. 

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250 



A. Richard Caputo 



Factually, Gil-Pre involved a substandard product that 
had been screened and then sent on for further processing. The 
United States District Court for the Middle District of Pennsyl- 
vania determined that the material was not subject to royalty 
because it did not go through a coal breaker. Indeed, the Dis- 
trict Court held that the words "produced for use or for sale" 
exclusively meant run through a coal breaker. This would have 
excluded material being sold and used as anthracite coal. We 
appealed. 

On appeal to the United States Court of Appeals for the 
Third Circuit, the Court rejected the District Court's view of 
the operative contract language and recognized that technology, 
as well as the realities of a non-organized industry, compelled a 
construction of the key language which required a royalty on 
material made marketable for use as fuel, whether it went through 
a breaker or not. 

The significance of the case is manifest. The anthracite 
pension plan now receives contributions on material which does 
not pass through a coal breaker or other involved process. The 
use of key language of the contract as language of exclusion has 
lessened since this decision. 



(a) 1986-8. 

(b) The Honorable Richard P. Conaboy 

Judge of the United States District Court for 
the Middle District of Pennsylvania 

The Honorable Walter K. Stapleton 

The Honorable Carol Los Mansmann 

Judges of the United States Court of Appeals 

for the Third Circuit 

The Honorable Clarkson S. Fisher 

Judge of the United States District Court for 

the District of New Jersey, sitting by designation 

(c) Co-counsel: Cynthia A. Smith, Esquire, now by marriage 

Cynthia A. Muroski, Esquire 
387 Wyoming Avenue 
P.O. Box 2059 
Kingston, PA 18704 
(717) 288-5020 



Opposing Counsel: Howard A. Rosenthal, Esquire 
Pelino & Lentz 
32nd Floor 
One Liberty Place 
Philadelphia, PA 19103-7393 
(215) 665-1540 



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251 

A. Richard Caputo 



4 . Frank J. Galgay and Francis P. Bonner. Trustees of the 
Anthracite Health and Welfare Fund (Pension Trust) and the 
Anthracite Health and Welfare Fund (Pension Trust) v. Pagnotti 
Enterprises. Inc. . No. 3:CV-91-0999 (M.D.Pa.). 

In this case, my client, the Trustees of the Anthracite 
Health and Welfare Fund, instituted suit against Pagnotti 
Enterprises, Inc. ("PEI") to recover the withdrawal liability of 
Beltrami Enterprises, Inc. ("BEI") on the theory that PEI and BEI 
were part of a controlled group of companies within the meaning of 
29 U.S.C. §1301(b) (1) . 

The issue in the case was whether PEI ever became a member of 
a controlled group with BEI. 

While there never was a transfer of the stock of BEI to 
PEI, the parties began negotiations in 1980 and arrived at an 
"agreement in principle" in March, 1982. Thereafter, we alleged 
and believe we established through discovery, that PEI exercised 
such a degree of control of BEI for the next eight (8) years 
that, for purposes of the statute, it controlled BEI. The 
indicia of control upon which we relied included the control of 
funds, accounts payable, field operations, labor relations, 
sales, pricing, and environmental matters. Admitted funds in 
excess of $34 Million passed from PEI to BEI between 1982 
and 1988 in the form of "advances for coal" for which no coal was 
delivered. Moreover, there were no notes or other evidence of 
indebtedness regarding the funds advanced. 

Cross motions for summary judgment were denied. The case was 
called for trial in 1997, and after four (4) days of trial, the 
case was settled. 

The case is significant because we sought to establish that 
substance should govern over form with regard to the enforcement 
of the controlled group provisions of 29 U.S.C. §1301(b)(l). BEI 
declared bankruptcy while owing the Fund $2,4 00,000 in withdrawal 
liability. Although there was no executed agreement of purchase 
between BEI and PEI, we attempted to show that the requisite 
degree of control was extent by virtue of the conduct of the 
parties. 

(a) 1991-February, 1997. 

(b) The Honorable Thomas I. Vanaskie 

Judge of the United States District Court for the 
Middle District of Pennsylvania 

(c) Opposing Counsel: Robert D. Schaub, Esquire 

Robert N. Gawlas, Jr. , Esquire 
Rosenn, Jenkins & Greenwald 
15 South Franklin Street 
Wilkes-Barre, PA 18711 
(717) 826-5600 

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A. Richard Caputo 



5. Eininett Thomas, et al. and Charles Nedd. et al. v. 
Honevbrook Mines. Inc. . Civil Action No. 8499 (M.D.Pa.). 

This was a suit by the trustees of an employee benefit fund 
which had been established as a result of collective bargaining 
between the United Mine Workers of America and the anthracite 
coal operators against an operator which was delinquent in its 
contributions to the fund. Jurisdiction was founded in §301 of the 
Labor Management Relations Act, as amended, 29 U.S.C. §185. The 
issue in the case was whether the trustees of a jointly admini- 
stered multiemployer pension fund could maintain an action to 
recover delinquent contributions in a federal district court pur- 
suant to §301 supra absent diversity of citizenship between the 
parties. 

The matter was heard on the delinquent operator's motion to 
dismiss before The Honorable William J. Nealon, United States 
District Judge, and Judge Nealon sustained jurisdiction. This 
was later affirmed by the United States Court of Appeals for the 
Third Circuit. 

This case is significant because it was, at the time, a case 
of first impression in the United States.* Moreover, the trus- 
tees of this fund were, at the time of the institution of this 
suit, confronted with an industry which was virtually, to an 
operator, delinquent in its contributions to the fund. In 
addition, the fund was in terrible financial condition and was 
attempting to pay benefits to some 14,000 pensioned miners. The 
prospect of suits in local courts was undesirable because of the 
rumored and known coal interests of various county common pleas 
judges. It was imperative that a more objective forum be 
selected to resolve the issues of delinquencies. The federal 
courts proved, with the passage of time and some thirty-seven 
(37) additional cases, to have been that forum. 

(a) 1964-71. 

(b) The Honorable William J. Nealon 

Judge of the United States District Court for the Middle 
District of Pennsylvania 



The passage of the Employee Income Retirement and Security Act 
(ERISA) provided a statutory enforcement mechanism for such 
actions after 1974; 29 U.S.C. §1132, 1145. 



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253 



A. Richard Caputo 



(c) Co-counsel: Charles A. Shea, Jr., Esquire (deceased) 
Shea, Shea & Caputo 
626 First Eastern Bank Building 
Wilkes-Barre, PA 18701 
(717) 823-2151 

The Honorable Thomas N. O'Neill, Jr. 
Judge of the United States District Court 
for the Eastern District of Pennsylvania 
14613 U.S. Courthouse 
Independence Mall West 
601 Market Street 
Philadelphia, PA 19106 
(215) 597-2750 

Opposing Counsel: Theodore R. Laputka, Esquire (Deceased) 
Laputka, Bayless, Ecker & Cohn 
Citizens Bank Building 
Hazleton, PA 18201 
(717) 455-4731 



6. I serve on the Unauthorized Practice Committee of the 
Luzerne County Bar Association. The Committee is currently 
considering three (3) matters of alleged unauthorized practice. 
I have attended one (1) meeting with regard to these matters, and 
I will be involved in the final decision as to how to proceed 
with respect to each case. 



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A. Richard Caputo 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, amounts and dates of all anticipated receipts 
from deferred income arrangements, stock, options, 
uncompleted contracts and other future benefits which you 
expect to derive from previous business relationships, pro- 
fessional services, firm memberships, former employers, 
clients, or customers. Please describe the arrangements you 
have made to be compensated in the future for any financial 
business interest. 

I expect to collect the outstanding fees on matters on 
which I have performed services up to the date I discontinue 
practice. I do not expect to negotiate a buyout or deferred 
income arrangement. I do anticipate that my interest in the 
building in which I practice and which Charles A. Shea, III 
and I own will be purchased on a market basis. 

With respect to Druid Associates and Alafaya Associates, 
I expect to continue to hold my interests, which I understand 
do not have an optimistic future. 

I currently hold options to purchase 664 shares of 
Rykoff -Sexton stock at a price of $10.54 per share. 

Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in deter- 
mining these areas of concern. Indentify the categories of 
litigation and financial arrangements that are likely to pre- 
sent potential conf licts-of-interest during your initial 
service in the position to which you have been nominated. 

Obviously, I would recuse myself from cases involving 
former clients, entities in which I served as an officer 
and/or director, and for the prescribed period, from any matters 
handled by members of my firm. I do have one (1) client, the 
Anthracite Health and Welfare Fund (Pension Plan) , which has 
been active in federal litigation, and as I stated, I would 
recuse myself from any matter in which it, or any other 
client, was involved. I would, of course, follow the Code 
of Judicial Conduct. 

In the event any matter involved an entity in which the 
Grace K. Shea Trust (my wife, children and I are beneficiaries) 
my wife's IRA or my IRA had an interest, I would recuse myself. 

I would use the same due diligence I use in my practice 
to identify problem areas, and I would avoid any appearance of 
impropriety by recusing myself. 



255 



A. Richard Caputo 



Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your 
service with the court? If so, explain. 

No. 



List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoraria, and 
other items exceeding $500 or more (If you prefer to do so, 
copies of the financial disclosure report, required by the 
Ethics in Government Act of 1978, may be substituted here.) 



See attached Exhibit "4' 



Please complete the attached financial net worth statement in 
detail (Add schedules as called for) . 



See attached Exhibit "5", 



6. Have you ever held a position or played a role in a political 
campaign? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, 
your title and responsibilities. 

In 1991, I was active in raising campaign funds for 
The Honorable Hugh F. Mundy, Judge of the Court of Common 
Pleas of Luzerne County, in his bid for election to a ten 
(10) year term. I had no official title, but I was active 
in seeking contributions from people who supported him. 



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256 



A. Richard Caputo 



III. GENERAL (PUBLIC) 

An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or pro- 
fessional workload, to find some time to participate in serv- 
ing the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing specific instances 
and the amount of time devoted to each. 

As essentially a practitioner in a moderately sized 
community, I have and continue to perform legal services for 
a number of people who cannot afford to pay, on a no fee for 
service basis. I estimate that in the performance of this 
type of service, I devote approximately twenty (20) hours per 
year. In addition, I have volunteered and am an active Pro 
Bono Project Volunteer Attorney which project is sponsored 
by the local bar association and Legal Services of 
Northeastern Pennsylvania, Inc. 

I also serve as Secretary, Treasurer and Director of The 
Luzerne Foundation, a community foundation organized in 1994 
to serve the communities of Luzerne County. This is the 
first community foundation established in this geographical 
area, and it involves approximately thirty (30) hours per 
year. 

The American Bar Association's Commentary to its Code of 
of Judicial Conduct states that it is inappropriate for a 
judge to hold membership in any organization that invidiously 
discriminates on the basis of race, sex or religion. Do you 
currently belong, or have you belonged, to any organization 
which discriminates -- through either formal membership 
requirements or the practical implementation of membership 
policies? If so, list, with dates of membership. What have 
you done to try to change these policies? 

I have been a member of the Wyoming Valley Country Club 
since 1967. It is a golf club. Until April, 1995, it did not 
offer voting membership to women. It did offer a "Ladies" 
membership which involved dues which were less than those of a 
full member, and which also involved limited access to the 
course. In 1995, as a new member of the by-laws committee, 
I, along with others, proposed the elimination of this inequity. 
The new by-laws provided for full membership to women by way of 
a conversion from "Ladies" membership to "Senior" member. No 
initiation fee was required; only the payment of Senior member 
dues. I drafted the set of changes to the by-laws which 
accomplished this task and offered full membership to women. 
These changes were adopted by the membership on April 22, 1995. 



257 



A. Richard Caputo 



Is there a selection commission in your jurisdiction to rec- 
ommend candidates for nomination to the federal courts? If 
so, did it recommend your nomination? Please describe your 
experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to 
your nomination and interviews in which you participated) . 

Yes, the Federal Judicial Nominating Commission of 
Pennsylvania. I do not know if it recommended my 
nomination. 

In the late spring of 1995, I was contacted by Congress- 
man Paul Kanjorski, who said he was seeking qualified people 
for the position of Judge of the United States District Court 
for the Middle District of Pennsylvania. I indicated my 
interest to him. I asked the Luzerne County Democratic Party 
leader to write a letter to the President recommending me for 
the position, and I also made the same request of the State 
Democratic Party leader. In addition, I sought the support 
of those who were aware of my abilities and whom I thought 
could appropriately recommend me to the President for consid- 
eration as a nominee. In April of 1995, I was contacted by 
White House counsel and asked to complete and return various 
forms. I did so, and shortly thereafter, vetting began. I 
was interviewed extensively by a deputy assistant attorney 
general. Others such as clients, lawyers, judges and busi- 
ness associates reported to me that they had been interviewed 
as well. In August of 1995, I was interviewed at the Justice 
Department in Washington by representatives of the Office 
of Policy Development. In October of 1995, I was interviewed 
by the FBI, and in December, 1995, by the American Bar 
Association. 

On February 25, 1997, I was asked by the Office of 
Policy Development at the Justice Department, to complete and 
update various forms necessary to be further considered for 
nomination. I did so. I was again interviewed by an FBI 
agent in March, 1997. I was interviewed by the Federal 
Judicial Nominating Commission of Pennsylvania on June 17, 1997. 

Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be inter- 
preted as asking how you would rule on such case, issue, or 
question? If so, please explain fully. 

No. 



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A. Richard Caputo 



5. Please discuss your views on the following criticism 
involving "judicial activism." 

The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism that 
alleges that the judicial branch has usurped many of the pre- 
rogatives of other branches and levels of government. Some 
of the characteristics of this "judicial activism" have been 
said to include: 

a. A tendency by the judiciary toward problem-solution 
rather than grievance-resolution; 

b. A tendency by the judiciary to employ the individual 
plaintiff as a vehicle for the imposition of far- 
reaching orders extending to broad classes of 
individuals; 

c. A tendency by the judiciary to impose broad, affirm- 
ative duties upon governments and society; 

d. A tendency by the judiciary toward loosening juris- 
dictional requirements such as standing and 
ripeness; and 

e. A tendency by the judiciary to impose itself upon 
other institutions in the manner of an administrator 
with continuing oversight responsibilities. 

Federal courts are courts of limited jurisdiction. 
The judiciary determines matters in the context of a case or 
controversy, considering standing and ripeness. It should 
not, as the legislature is charged to do, make broad 
pronouncements of policy. The federal judiciary is not a 
popularly elected body, and it does not have the constitu- 
tional or statutory mandate to generally engage in solving 
society's problems. That is left to the Congress, and to a 
lesser extent, the President. The judiciary's function is to 
decide cases or controversies, viz resolve grievances between 
and among parties, and in the process, follow precedent, 
interpret statutes and, when called upon, review legislation 
to determine constitutionality. With respect to the latter, 
we should be mindful that state and federal legislators and 
state court judges also take the oath to uphold the 
Constitution of the United States. 



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259 

A. Richard Caputo 



Moreover, with respect to following precedent, stare 
decisis is a fundamental principle of the judicial process. 
It provides predictability, and therefore stability to the 
judicial system. A lower court judge has the responsibility 
and obligation to follow the precedent of the relevant higher 
courts, even if he or she disagrees with that higher court 
decision. 

The ability of any one branch of our government to check 
or contain the usurpation of the function of any other is 
manifest in our system. Indeed, this separation of powers and 
checks and balances has been acknowledged as part of the 
genius of our system. I believe the ability of the other 
branches of our government to keep the judiciary in check 
provides the ultimate remedy for the type of concerns 
proposed in the criticisms I have attempted to address here. 



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260 

A. Richard Caputo 



hgcrddsk 

hgc.cll 

as of 2/23/95 



EXHIBIT "1" 



Bylaws of the Huntsville Golf Club. 



CONSTITUTION 

OF THE 

HUNTS VI LLE GOLF CLUB 



ARTICLE I 
NAME AND PURPOSE 



1.1 The organization shall be known as the HUNTSVILLE 
GOLF CLUB (hereinafter "HGC" or the "Club") . The Club is a pri- 
vate golf club wholly owned by Maplemoor, Inc. which exists for 
the purpose of fostering an interest in the game of golf and its 
traditions. 



ARTICLE II 
MEMBERSHIP 



2.1 Classes . The Membership shall consist of the 
classes and number of Members permissible per class as follows: 



(a) 


Regular 


300 


(b) 


Junior 


100 


(c) 


Associate 


See Paragraph 2 . 4 


(d) 


Non-Resident 


50 


(e) 


Honorary 


10 



2.2 Regular Members . Only persons at least thirty-five 
(35) years of age shall be eligible for Regular Membership. 
Regular Members may enjoy all the privileges of the Club. 
Regular Memberships are voting (as permitted by this 
Constitution) , nonproprietary, assessable, nontransferable and 
terminate upon death. 

2.3 Junior Members . Only persons at least twenty-one 
(21) years of age who have not reached their thirty-fifth (35th) 
birthday shall be eligible for Junior Membership. Junior Members 
may enjoy all the privileges of the Club. All Junior Memberships 



261 



are nonproprietary, nonvoting, nonassessable, nontransferable and 
terminate upon death. Sons and daughters of Regular Members in 
good standing may have priority over other applicants for Junior 
Memberships. 

A Junior Member accepted to Membership on or before 
December 31, 1994 shall purchase a Membership Bond according to 
the schedule in Paragraph 5.2. However, a Junior Member shall be 
permitted to make equal annual payments toward the cost of that 
Membership Bond. The amount of the payments shall be determined 
by dividing the total cost of the Membership Bond by the number 
of years difference between the Junior Member's age at acceptance 
to Membership and when that Junior Member will reach his thirty- 
fifth (35) birthday. A Junior Member purchasing on installments 
shall be paid interest on the amount of the installment paid in 
at the rate of interest provided in the Membership Bond. In the 
event there is a default in a payment ot an installment which 
persists for thirty (30) days beyond the due date, the Junior 
Member shall be deemed to have withdrawn from the Club, lose his 
privileges of Membership, and be repaid the amount of the 
installments already paid. The applicable initiation fee will be 
payable as hereinafter set forth in Article V. 

A Junior Member accepted to Membership after 
December 31, 1994 shall pay a Membership Fee according to the 
schedule in Paragraph 5.2. However, a Junior Member shall be 
permitted to make equal annual payments toward the cost of that 
Membership Fee. The amount of the payments shall be determined 
by dividing the total cost of the Membership Fee by the number of 
years difference between the Junior Member's age at acceptance to 
Membership and when that Junior Member will reach his thirty- 
fifth (35th) birthday. In the event there is a default in a pay- 
ment of an installment which persists for thirty (30) days beyond 
the due date, the Junior Member shall be deemed to have withdrawn 
from the Club, lose his privileges of Membership, and be repaid 
the amount of the installments already paid. The applicable ini- 
tiation fee will be payable as hereinafter set forth in Article 
V. 

A Junior Member's annual dues shall vary according to 
his age as determined by the Board of Governors. Upon reaching 
his thirty-fifth (35) birthday, a fully paid Junior Member shall 
become a Regular Member and shall pay the same dues required to 
be paid by Regular Members. 



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2.4 Associate Members . Only persons who are surviving 
spouses of Regular, Junior or Non-Resident Members are eligible 
for Associate Membership. Associate Members may enjoy all the 
privileges of the Club, except as modified herein. Associate 
Memberships are nonproprietary, nonvoting, nonassessable, non- 
transferable and terminate upon death, marriage or remarriage. 
Those Associate Members who are the surviving spouses of 
Non-Resident Members shall continue limited golfing privileges as 
stated in Section 2.5. 



2.5 Non-Resident Members . Only persons at least 
twenty-one (21) years of age who, for at least nine (9) months a 
year do not reside within forty (40) miles from Public Square in 
Wilkes-Barre (hereinafter the "Club Area"), are eligible for 
Non-Resident Membership. Non-Resident Members may enjoy all the 
privileges of the Club, provided, however that they shall be 
restricted to twenty (20) rounds of golf per year, including 
those played by the Member and those played by other eligible 
family members. Non-Resident Memberships are non-proprietary, 
nonvoting, nonassessable, nontransferable, and terminate upon 
death. Upon establishing legal residence in the Club Area, a 
Non-Resident may, within ninety (90) days, make application to 
the Club for Regular Membership. 

If the Non-Resident Member becomes an Accepted Applicant 
for Regular Membership on or before December 31, 1994, and there 
are no Regular Memberships available to him, the name shall be 
placed upon the waiting list for Accepted Applicants to Regular 
Membership. Such Non-Resident Member may retain his status as a 
Non-Resident Member until such time as he is accepted as a Regu- 
lar Member, provided, however that such a Non-Resident Member may 
continue his status only after depositing with the Club an amount 
equal to one-fourth (h) of the Membership Bond and initiation fee 
required for the last Regular Membership accepted. Such deposit 
shall be applied toward the Membership Bond and initiation fee 
required to be purchased at the time of the acceptance. A Non- 
Resident Member in making payment in order to be accepted as a 
Regular Member, shall receive credit toward the Regular Member- 
ship for the amount of such payments made for such Non-Resident 
Membership, provided, however, said amount does not exceed the 
amount of the Regular Membership transfer fee then established. 
During the period of time said Non-Resident Member is on the 
waiting list of Accepted Applicants for Regular Membership, he 
shall pay Regular Member dues and receive all privileges accorded 
a Regular Member (except the right to vote) but he shall be 
counted as a Non-Resident Member for the purpose of determining 
the number of Non-Resident Members then outstanding. In the 
event such Non-Resident Member fails to make such deposit or fails 



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to perform such acts as are required by this Constitution for 
acceptance to Regular Membership after Regular Membership is made 
available to him, his Non-Resident Membership together with all 
Club privileges, shall thereupon terminate. 

If the Non-Resident Member becomes an Accepted Applicant 
for Regular Membership after December 31, 1994, and there are no 
Regular Memberships available to him, the name shall be placed 
upon the waiting list for Accepted Applicants to Regular 
Membership. Such Non-Resident Member may retain his status as a 
Non-Resident Member until such time as he is accepted as a Regu- 
lar Member, provided, however that such a Non-Resident Member may 
continue his status only after depositing with the Club an amount 
equal to one-fourth (h) of the Membership Fee and initiation fee 
required for the last Regular Membership accepted. Such deposit 
shall be applied toward the Membership Fee and initiation fee 
required to be paid at the time of the acceptance. A Non- 
Resident Member in making payment in order to be accepted as a 
Regular Member, shall receive credit toward the Regular Member- 
ship for the amount of such payments made for such Non-Resident 
Membership, provided, however, said amount does not exceed the 
amount of the Regular Membership transfer fee then established. 
During the period of time said Non-Resident Member is on the 
waiting list of Accepted Applicants for Regular Membership, he 
shall pay Regular Member dues and receive all privileges accorded 
a Regular Member (except the right to vote) but he shall be 
counted as a Non-Resident Member for the purpose of determining 
the number of Non-Resident Members then outstanding. In the 
event such Non-Resident Member fails to make such deposit or 
fails to perform such acts as are required by this Constitution 
for acceptance to Regular Membership after Regular Membership is 
made available to him, his Non-Resident Membership together with 
all Club privileges, shall thereupon terminate. 

2.6 Honorary Members . Honorary Memberships may be 
issued to worthy individuals upon the majority vote of the Board 
of Governors. Honorary Members may enjoy all the privileges of 
the Club. Honorary Memberships shall be nonproprietary, non- 
voting, nonassessable, nontransferable and terminate upon death. 
The term of an Honorary Membership shall be for one (1) year. 
Upon the expiration of such term, the Board of Governors shall 
review such Membership and in its sole discretion either renew 
the Membership for an additional one (1) year term or determine 
not to renew the Membership, whereupon the Membership shall 
terminate. 



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264 



2.7 Residence Requirement . All Members, regardless of 
Membership classification, shall reside within the Commonwealth 
of Pennsylvania. 

2.8 Extension of Privileges . The Board may extend the 
privileges of the Club to such other persons and upon such terms 
as the Board may from time to time prescribe. 

2.9 Privileges of the Club . As used in this 
Constitution, "privileges of the Club" means the right to use the 
facilities of the Club and to sponsor guests to use those facili- 
ties subject to any rules and regulations which may from time to 
time be established by the Board. 

2.10 Family Privileges - Persons Entitled . A Member's 
spouse is entitled to the same privileges as the Member enjoys. 
Members' unmarried children up to the age of twenty-one (21) 
years or up to the age of twenty-four (24) years who are attend- 
ing college on a full time basis and living either in the family 
home or at or about the college campus during the college term 
are entitled to the same privileges as their member parent. 
Where a Member has living with him and dependent upon him for 
financial support, an immediate member of his family other than 
his spouse or children, the Board may grant such person such 
privileges of the Club for such period and under such restric- 
tions as the Board may, in its discretion, choose and provide 
that any such privileges granted may be changed or withdrawn by 
the Board at any time. The enjoyment of family privileges by any 
person entitled thereto pursuant to this Section is subject to 
such rules as may be adopted by the Board. 

2.11 Admission Application . Subject to the general 
provisions hereinafter set forth, the Board shall prescribe when 
and the manner in which all applicants for Membership shall be 
made. Each Applicant must initially be invited to join by a 
Regular Member, and his formal application for Membership must be 
endorsed and sponsored by at least two (2) Regular Members of the 
Club. Only Regular Members, with at least two (2) years tenure 
as Regular Members, may sponsor new Applicants for Membership and 
such sponsorship is limited to two (2) Applicants in any one (1) 
calendar year. 

Until such time as there are Regular Members of the Club 
with at least two (2) years tenure as Regular Members, Applicants 
may only be invited to join by the Board. 



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265 



2.12 No Discrimination . Applicants shall be accepted 
and consideration given for Membership in the Club without regard 
to sex, race, creed or color. 

2.13 Membership Committee . The Membership Committee 
shall consist of the Board of Governors. The Membership 
Committee shall investigate each Applicant for Membership. The 
records and proceedings of the Membership Committee shall be con- 
fidential and shall be subject to the inspection only by the 
Board. The Membership Committee shall fix the time for the hold- 
ing of its regular and special meetings and shall be subject to 
rules and regulations as the Board may from time to time adopt 
with respect to the Committee. 

2.14 Election to Membership . Applicants shall be 
elected to Membership only after they shall have received a 
majority vote of acceptance from Members of the Membership 
Committee in attendance at a regular meeting with a quorum. An 
Applicant receiving such vote shall be known as an "Accepted 
Applicant." The name of each Accepted Applicant shall be placed 
upon a list of Accepted Applicants and the Membership Committee 
shall thereafter promptly notify such Accepted Applicant. 

2.15 (A) Acceptance to Membership on or before Decem- 
ber 31. 1994 . At the time of his election, an Accepted Applicant 
shall: 

(i) If a Membership vacancy exists, be accepted 
to Membership upon payment in full to the Club for the applicable 
Membership Bond and initiation fee. 

(ii) If no Membership vacancy exists, be accepted 
to Membership, subject to any waiting list established pursuant 
to Section 2.18, when (a) a Membership vacancy occurs by reason 
of the death, resignation or surrender of a Membership, and 
(b) full payment for the applicable Membership Bond and initia- 
tion fee has been received by the Club. 

An Accepted Applicant who within seven (7) days after 
receipt of notification of the availability of a Membership has 
not made the above payment, shall have his name removed from the 
waiting list which is established for Accepted Applicants, unless 
the Board, for cause extends the time for payment. 



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266 



(B) Acceptance to Membership after December 31 , 
1994 . At the time of his election, an Accepted Applicant shall: 

(i) If a Membership vacancy exists, be accepted 
to Membership upon payment in full to the Club for the applicable 
Membership Fee and initiation fee. 

(ii) If no Membership vacancy exists, be accepted 
to Membership, subject to any waiting list established pursuant 
to Section 2.18, when (a) a Membership vacancy occurs by reason 
of the death, resignation or surrender of a Membership, and 
(b) full payment for the applicable Membership Fee and initia- 
tion fee has been received by the Club. 

An Accepted Applicant who within seven (7) days after 
receipt of notification of the availability of a Membership has 
not made the above payment, shall have his name removed from the 
waiting list which is established for Accepted Applicants, unless 
the Board, for cause extends the time for payment. 

2.16 (A) Membership Bond . The Board shall require the 
purchase of a Membership Bond upon acceptance as a Regular, Jun- 
ior or Non-Resident Member on or before December 31, 1994 as 
hereinafter set forth in Article V. 



(B) Membership Fee . The Board shall require the 
payment of a Membership Fee upon acceptance as a Regular, Junior 
or Non-Resident Member after December 31, 1994 as hereinafter set 
forth in Article V, 



2.17 Initiation Fee . The Board shall require a 
nonrefundable initiation fee to be paid by Regular, Junior 

and Non-Resident Members as hereinafter set forth in Article V. 

2.18 Waiting List . The Board may establish a waiting 
list for Accepted Applicants to whom no Membership is then avail- 
able for issuance. The Board shall regulate all aspects of any 
waiting list established, including, without limitation, priority 
on the list and the obligations and privileges of and payments, 
if any, to be made by persons on the list. 



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267 



2.19 Resignations . Any Member may resign his 
Membership; provided, however, such resignation may be refused by 
the Board unless and until any indebtedness owing to the Club by 
such Member has first been paid in full. Such resignation shall 
be submitted in writing to the Board. 

2.20 Leave of Absence . A leave of absence may be 
granted in the discretion of the Board upon the showing of spe- 
cial circumstances. 



2.21 Changes in Classes . The Board of Governors may 
make such changes in the number of classes of Membership or the 
number of Members permissible per class as it may deem 
appropriate. 



ARTICLE III 
GOVERNMENT 

3.1 Governing Body . The management of the Club shall 
be under the control of a governing body of nine (9) persons to 
be known as the Board of Governors. Five (5) persons shall be 
appointed to the Board by Maplemoor, Inc. (hereinafter "Appointed 
Governors") . The remaining four (4) persons shall be elected by 
the Members of the HGC as hereinafter set forth (hereinafter 
"Elected Governors") . The Chairman of the Board of Governors 
shall be appointed by Maplemoor, Inc. 

3.2 Eligibility . Only Regular Members shall be eligi- 
ble for election to the Board of Governors. Candidates shall be 
nominated by the Nominating Committee appointed by the Board of 
Governors. The Nominating Committee shall submit the names to 
the Board Of Governors at least thirty (30) days prior to an 
annual meeting in which an election is to be held. The Board 
shall post the list of names at the premises of the Club on a 
bulletin board and mail a copy of same to each Regular Member at 
least three (3) weeks prior to the annual meeting. 

Any Regular Member in good standing may make additional 
nominations of a Member or Members who are eligible for election 
to the Board of Governors by submitting the name or names of the 
candidates in writing at least fifteen (15) days prior to the 
annual meeting to the Board of Governors which shall promptly 



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268 



post such names on the bulletin board at the Club upon which 
names of others for such office have been posted and shall mail a 
list of such names to each Member at least ten (10) days prior to 
the annual meeting. 

3.3 Term . Elected Governors, shall be elected for a 
term of three (3) years. An Elected Governor may be elected to 
succeed himself once but may not serve more than two (2) consecu- 
tive terms unless his first service on the Board is to fill the 
unexpired term of another Member who has for any reason left the 
Board. All Members of the Board shall assume their duties imme- 
diately upon election. 

3.4 Elections . Elected Governors shall be elected by 
the Regular Members at the annual meeting at which time the 
Chairman of the Board shall appoint two (2) tellers who shall act 
as inspectors and shall tabulate the vote. 

Voting shall be by ballot and the four (4) candidates 
receiving the highest number of votes shall be declared elected. 
In the event of a tie vote between two (2) candidates, the Board 
of Governors shall, at its next regular meeting, or at a special 
meeting called for such purpose, decide which such candidates 
shall be elected. 



Elections shall be held every three (3) years at which 
time all four (4) Elected Governors shall be chosen. 

3.5 Vacancies . Vacancies in the Board of Governors 
among the Elected Governors shall be filled by the Chairman of 
the Board by appointment, subject to the confirmation of the 
Board, and Members so appointed shall hold office until the next 
regular election. 



3.6 Quorum . Seven (7) Members, no less than four (4) 
of whom shall be Appointed Governors shall constitute a quo- 
rum of the Board of Governors. 

3.7 Rules and Regulations . The Board of Governors 
shall, from time to time, make such rules and regulations as it 
may deem necessary. 



269 



3.8 Appointment to Committees . The Chairman with the 
approval of the Board of Governors shall appoint the Members of 
all Committees provided for in this Constitution and shall like- 
wise have power to establish and fill such other standing or spe- 
cial committees as may be deemed necessary to assist in the 
management of tha Club. 

3.9 Power to Censure. Suspend or Expel . The Board of 
Governors shall have power to censure, suspend or expel any 
Member or Members, for nonpayment of money owing to the Club or 
for conduct prejudicial in their judgment to the good name or 
welfare of the Club. Ten (10) days' notice in writing shall be 
given to the Member against whom charges have been made, at which 
time the Member may appear and be heard. 

3.10 Interpretation of Constitution . The Board of 
Governors shall be the final authority for the interpretation of 
this Constitution and such rules and regulations as may be 
enacted. 



3.11 Meetings . The Board of Governors shall meet 

at the Clubhouse or a designated location with such frequency as 
they may determine. Special meetings of the Board may be called 
by the Chairman upon his own motion and must be called by him 
upon the written request of four (4) Members thereof. 

3.12 Resignations . An Elected Governor who shall 
absent himself without leave from three (3) consecutive regular 
meetings of the Board may be deemed by the Board of Governors to 
have resigned therefrom. 

3.13 Removal from Office . An Elected Governor may be 
removed from office by the affirmative secret ballot of a major- 
ity of the Members of the Board of Governors present at a special 
meeting of the Club called for such purpose, at which time such 
Governor may appear and be heard. 

3.14 Control and Management . The Board of Governors 
shall have control and management of the affairs, funds and prop- 
erty of the Club, and shall authorize and control all 
expenditures; they shall have full power, and it shall be their 
duty to carry out the purposes of the Club according to law, and 
as provided in the Constitution, and to make and enforce all 



270 



rules and regulations which they may deem desirable for the wel- 
fare of the Club. The Board of Governors shall have full power 
to make and levy assessments. 

3.15 Proxy . No Member of the Board may cast any ballot 
by proxy on any issue. 

3.16 Legal Action . No legal action based upon any 
claim shall be brought against the Club by any Member unless the 
claim is first presented in writing to the Board of Governors 
thirty (30) days prior thereto. The Member shall receive ten 
(10) days' written notice of a hearing on such claim. 

3.17 Membership Meetings . There shall be an annual 
meeting of the Regular Membership on the first Saturday in April. 
Special Meetings of the Regular Membership may be called by the 
Board of Governors upon reasonable notice. Action by the Regular 
Membership shall be upon majority vote of those Regular Members 
in attendance at the Annual and/or Special Meeting. There shall 
be no quorum required. 



ARTICLE IV 
COMMITTEES 

4.1 The Standing Committees of the Club shall be: 

Executive Committee Membership Committee 

Green and Grounds Committee Nominating Committee 

Entertainment Committee Golf Committee 
Planning Committee 

4.2 Executive Committee . The Executive Committee shall 
consist of the five (5) Appointed Governors, and the Chairman of 
the Board of Governors shall be Chairman thereof. It shall con- 
vene at the call of the Chairman and may act on behalf of the 
Board of Governors during the interim between Board meetings. In 
so acting, it shall have the same authority and effect as the 



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271 



Board itself; provided such actions shall be fully reported to 
the Board of Governors and ratified by the body at its next suc- 
ceeding meeting. 

4.3 Green and Grounds Committee . The Committee shall 
define and be solely responsible for all policy relative to care 
and maintenance of the golf course and the purchase of supplies 
and equipment relating thereto. The Committee shall review and 
monitor the professional manner in which the Golf Course 
Superintendent implements Committee and Club policy. 

4.4 Entertainment Committee . The Committee shall 
initiate, arrange, promote and supervise the execution of a pro- 
gram of social activities and entertainment, in cooperation with 
the management and the scheduled affairs of other Committees. 
Expenditures for music, performance, decorations and publicity 
shall emanate from funds allocated to the account of this 
Committee. The Entertainment Committee shall work with such 
other Committees as necessary to implement its programs. 

4.5 Planning Committee . The Committee shall study all 
trends and Club usage and shall develop and continually update a 
long-range program of facilities and activities for the Club. 
They shall advise the Board of Governors concerning all proposals 
for alterations and improvements of the Club buildings, its 
facilities and grounds and other properties. In general, the 
Committee shall concern itself primarily with matters to be 
accomplished two (2) or more years in the future. 

4.6 Membership Committee . The Committee shall have 
charge of all matters pertaining to Membership applications, 
resignations, cancellations, suspensions and transfers in status; 
and shall make recommendations in connection therewith to the 
Board of Governors, who shall have full and final authority to 
act with respect to such matters. 

4.7 Nominating Committee . The Committee shall be 
appointed by the Chairman of the Board of Governors and consist 
of at least five (5) Members of the Club. It shall nominate can- 
didates for the Board of Governors to succeed those whose term is 
about to expire. 



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272 



4.8 Golf Committee . The Committee shall have adminis- 
trative charge of all play, including intra-Club and inter-Club 
matches. It shall have the power to establish local rules con- 
cerning play which are not inconsistent with those of the United 
States Golf Association. It shall recommend the selection and 
use of an improved system of handicaps and shall exercise control 
over the condition and awards of all golf trophies and other 
prizes. It shall review and monitor the professional manner in 
which the Golf Professional implements Committee and Club policy. 
It shall regulate Greens, Caddy Fees and Cart Fees subject to the 
approval of the Board of Governors. 

4.9 Special Committees . In addition to the Standing 
Committees, the Chairman of the Board of Governors may from time 
to time also create such other Committees as he may deem 
necessary. 

4 . 10 Advisory Committees . All Committees are advisory 
in nature, and have no authority to act without express approval 
of the Board of Governors. All Committees shall make written 
reports to the Board of Governors as often as required. 



ARTICLE V 
FEES. DUES AND ASSESSMENTS 

5.1 Business Year . The business year of the Club shall 
be the calendar year. 

5. 2 Membership Bonds. Membership Fees and Initiation 
Fees . Upon acceptance to Membership on or before December 31, 
1994, each Member shall be required to purchase a Membership 
bond. Upon acceptance to Membership after December 31, 1994, 
each member shall be required to pay a Membership Fee. One-half 
(H) of the Membership Fee shall be due upon acceptance to Member- 
ship and one-half (%) of the Membership shall be due six (6) 
months after acceptance to Membership. The schedule of the cost 
of the Membership Bonds and Membership Fees, as the case may be, 
for each classification of Membership is as follows: 

(a) Regular $15,000.00 

(b) Junior $15,000.00 

(See Paragraph 2.3) 

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273 

(c) Associate $ -0- 

(d) Non-Resident $ 5,000.00 

(e) Honorary $ -0- 

In addition to the purchase of the Membership Bond, all 
Regular, Junior and Non-Resident Members shall pay a 
nonrefundable initiation fee in such amounts as determined by the 
Board of Governors. 



No play on the course will be permitted until the initi- 
ation fee is paid, and in the event the initiation fee is not 
paid within twenty (20) days of acceptance to Membership, the 
Member shall be deemed to have withdrawn as a Member of the Club. 



Except as otherwise noted herein, a new Applicant 
accepted to Membership or a Member transferring to another clas- 
sification for which the purchase of a Membership Bond or payment 
of a Membership Fee and/or payment of an initiation fee is 
required shall thereupon become obligated for payment of the Mem- 
bership Bond or Membership Fee and/or initiation fee amount in 
full. Except however, one-half (%) of any Membership Fee shall 
be due upon acceptance to Membership or transfer to another clas- 
sification of Membership and one-half (H) shall be due six (6) 
months after acceptance to Membership or transfer to another 
classification of Membership. In the event that such payment is 
not made within twenty (20) days of the date it becomes due, the 
Member shall be deemed to have withdrawn as a Member of the Club. 



Interest shall be paid on the Membership Bonds semi- 
annually at the rate of interest provided in the Membership Bond. 
Redemption shall occur within ninety (90) days of the date of the 
Member's death or disability, regardless of the availability of a 
new Member to take his place. A Member shall also be entitled to 
receive full repayment of the face amount of the Membership Bond 
within ninety (90) days of the termination of his Membership, 
provided there is an available new Member to take the place of 
the withdrawing Member. If such replacement is not immediately 
available, then redemptions shall be made on a first 
withdrawn/first redeemed basis. Interest will be paid on the 
Membership Bonds so long as they remain outstanding. The 
Membership Bonds also have a call provision granting Maplemoor 
the right, at any time, to redeem all or a portion of the 
Membership Bonds on a ratable basis. In any and all events, the 
Membership Bonds shall have a fixed maturity date of twenty (20) 



■14- 



274 



years from the date of issue. The Membership Bonds will not be 
amortized and there will be no return of principal to a 
Membership Bondholder except under the terms for redemption which 
are described above. The interest income on the Membership Bond 
will be paid semi-annually. A form 1099 will be provided to the 
Member in the amount of the Member's Membership Bond interest. 

Repayment of the Membership Fee shall occur within 
ninety (90) days of the date of the Member's death or disability, 
regardless of the availability of a new Member to take his place. 
A Member shall also be entitled to receive full repayment of the 
Membership Fee within ninety (90) days of the termination of his 
Membership, provided there is an available new Member to take the 
place of the withdrawing Member. If such replacement is not 
immediately available, then repayments shall be made on a first 
withdrawn/ first repaid basis. 

5.3 Annual Dues . All Members of the Club shall pay 
regular dues in such amounts and in such manner as determined by 
the Board of Governors. Dues are payable in advance as follows: 
one-half (%) is due the first day of January of each year and 
one-half (^) is due the first day of May of each year. Dues 
shall be prorated for the portion of the half year within which 
acceptance to Membership occurs. 

5.4 Assessments . The Board of Governors may levy 
assessments against Regular Members as it deems proper for funds 
required for Club purposes, provided that any assessment or 
assessments which in the aggregate in any given year exceed fifty 
percent (50%) of the annual dues for Regular Members shall not be 
effective unless approved by a majority of the Regular Members in 
attendance at a Membership meeting preceded by written notice to 
all Regular Members mailed thirty (30) days prior to the 
Membership meeting stating the intent to make such assessment, 
the amount and purpose thereof, and the effective date and manner 
of payment. 

5.5 Nonpayment . Except as otherwise noted herein, the 
Board of Governors shall cause to be posted by the I5th of each 
month, the names of and the amounts due by Members who have 
failed to pay within one (1) month after due any dues, fees, 
assessments, penalties, fines or debts owed the Club. If such 
sum and all debts accruing thereafter are not paid with fifteen 
(15) days after such posting, the Board of Governors shall cause 
to be sent to such delinquent Member a notice that if the debts 
are not paid within ten (10) days after the mailing of the 



-15- 



275 



notice, the Member will be suspended. If the debts are not paid 
within such ten (10) day period, the Member is automatically sus- 
pended from all privileges of Membership unless the Board of 
Governors accepts the Member's explanation as justifying the 
delinquency in which case the Board may extend for not more than 
thirty (30) days the time for payment of the debts and the effec- 
tive date of suspension. Prior to expulsion, the Board of 
Governors shall reinstate any Member so suspended upon payment of 
all debts owed the Club, including any sums for dues or the debts 
which would have accrued during the period of suspension. Any 
Member who fails to pay for any Membership Bond, Membership Fees, 
fees, dues, penalties, fines or other debts owed the Club for a 
period of three (3) months, whether or not the Member has been 
suspended shall be expelled at the next regular or special meet- 
ing of the Board of Governors. A Member whose Membership is sus- 
pended due to non-payment for the second time in one (1) fiscal 
year, shall be expelled by the Board of Governors at its next 
regular or special meeting. 



ARTICLE VI 
GUESTS 



6.1 Guests Permitted . The use of the privileges of the 
Club by guests of Members shall be as determined by the Board of 
Governors. 



6.2 Violation of Rules . Any guest or visitor violating 
the Constitution, rules or regulations of the Club may, in the 
discretion of the Board of Governors, be notified that he is no 
longer able to enjoy the privileges of the Club. 



ARTICLE VII 
DISCIPLINE AND COMPLAINTS 



7.1 Suspension and Expulsion . Any Member may be sus- 
pended or expelled for cause by the Board of Governors on the 
complaint of a Member, or on its own initiative. Except as oth- 
erwise expressly provided in this Constitution, no such action 
shall be taken before the Member shall have been furnished with a 
written statement of the charges preferred against him, and shall 



-16- 



276 



have been given at least ten (10) days' notice of the time when, 
and the place where, the same will be considered by the Board. 
Every such Member shall have the right to appear before the Board 
and be heard in answer to the charges before final actions shall 
be taken. 



7.2 Complaints . All complaints by Members against 
other Members for conduct in violation of Club rules or other 
misconduct bearing on a Member's suitability for continued Mem- 
bership in the Club, and complaints against employees of the Club 
for whatever reason, shall be in writing, signed and dated by the 
complainant, and delivered to the Board of Governors. The Board 
may refer such complaints to appropriate Committees of the Club 
for recommendations, and upon receipt of such recommendations 
take appropriate action. 



ARTICLE VIII 
MISCELLANEOUS 



8.1 Amendments . This Constitution and any rules and 
regulations promulgated thereunder may be amended by a majority 
vote of the Board of Governors. 



8.2 Notice. Any notice required to be given to the 
Board of Governors of the Club shall be sent by United States 
mail, postage prepaid addressed as follows: 

Board of Governors 
Huntsville Golf Club 
147 Hayfield Road 
Shavertown, PA 18708 

8.3 Prohibition Against Solicitation Mailings . Members 
shall not use or disclose to others for use the Membership roster 
for the purpose of making mass or general mailings for business 
or commercial purposes. 

8.4 Gender . Any references in this Constitution to the 
masculine gender shall be deemed to include the feminine and any 
references to the feminine gender shall be deemed to include the 
masculine. 



8.5 Club Colors . The colors of the Huntsville Golf 
Club shall be Hunter Green and Gold. 



-17- 



277 



A. Richard Caputo 



EXHIBIT "2" 



Bylaws of the Westmoreland Club. 




45-964 98-10 



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OFFICERS & BOARD OF GOVERNORS - I997 




S.ot.d 1.1. ,0 rish.: A John D.^ond. >ec,^,ory 
prei.deni M.choe' H Cook l,„t .,ce , 

S..»di„9 r.h ,„ ,.gt„: RaulJ s-eje/. Jo.eph , 
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the Second Vi 
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8 


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ty or deatI 
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ip of the Club shall c 
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there ahall be only i 
membership; provid 
bers existing on May 
hip classincation as N 
t Class B. as hereiofc 


III' 

a E 8 S 
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Tibership shall consist 
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Section S. Resident Membershi 
sist of Resident Class A, Resident C 
C. Commencing May 18. 1984, 
classification of Non-Resident 
however, that Non-Resident mem 
: 1984. may maintain their members 
"Resident Class A or Non-Residen 


Section 6. Resident Class A Me 
all members who are 40 years of as 
within 50 miles of the Public Square 
principal place of business is with 


Section 7. Resident Class B Mei 
all members who are 30 to 39 yeai 
within 50 miles of the Public Square 
principal place of business is with 



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309 



A. Richard Caputo 



EXHIBIT "3" 

uvcc dsk 

HVCC. 1 

Bylaws of the Wyoming Valley Country Club. 



CONSTITUTION AND BY-LAWS 

ARTICLE I 

NAME 

The name of the organization shall be THE WYOMING VALLEY 
COUNTRY CLUB. 



ARTICLE II 

OBJECT 

This Club is organized to promote social recreation 
among its Members through encouraging and stimulating an interest 
in golf. It is a corporation which does not contemplate monetary 
gain, incidental or otherwise, to its Members. 



ARTICLE III 

MEMBERSHIP CLASSIFICATIONS 

SECTION I. 

The membership of the Club shall consist of the 
following classifications: 

A. SENIOR - All Members over the age of twenty- 
five (25) . Seniors shall be the only voting 
Members, and the only ones entitled to hold office 
in the Corporation. Senior Members in good standing 
shall be the only Members considered to have equity 
in the Club. 

B. SPOUSE - The spouse of any Senior Member in good 
standing, and the spouse of an Associate who married 
prior to his or her twenty-sixth (26th) birthday. 

If the Senior Member or Associate, and his or her 
spouse shall be divorced, then the spouse shall no 
longer be a Member of the Club. 

C. ASSOCIATE - Sons or daughters of a Senior Member 
between the ages of twenty-one (21) and twenty-five 
(25) years of age. Upon marriage, prior to their 
twenty-fifth (25th) birthday, he/she may apply for 
Senior Membership. 



310 



Associate Members who have paid one (1) year's 
associate dues must apply for Senior Membership 
before reaching their twenty-sixth (26th) birthday. 
If accepted, they automatically become Members 
regardless of a waiting list and no initiation fee 
will be charged. 

D. JUNIOR - Children of Senior Members or children of 
their spouse. They may have automatic golfing 
privileges until their twenty-first (21st) birthday. 

E. CLERGY - Open to ordained clergy of all faiths. 

F. SOCIAL - Those Members entitled to the full 
facilities of the Club but do not have golfing 
privileges, except for one (1) round of eighteen 
(18) holes per month, upon payment of the required 

Green Fee. 

G. NON-RESIDENT - Any Senior Member, in good standing, 
moving his or her permanent residence beyond a 
seventy-five (75) air-mile radius from the Clubhouse 
may apply to the Board for transfer to this 
category. Permanent residence to mean in this 
instance year round living at the new address. 

H. HONORARY - May be granted under extraordinary 
circumstances for service to the Club, but is 
limited to one (1) in any given year. Subject to 
majority Board approval. 

I. WIDOW/WIDOWER - The surviving spouse of a Senior 
Member. 

J. SPECIAL - All those previously Members under the 
category heretofore known as LADIES who shall not 
elect to become Senior Members, and who maintain 
membership without interruption shall remain 
Members in this classification. 



SECTION II. 

The Board of Governors, under the powers granted by 
these By-laws, may limit the number of memberships available in 
any of the classifications when they feel that it is in the best 
interest of the Club to do so. 



311 



SECTION I 



ARTICLE IV 
APPLICATION AND ELECTION 



A Candidate for membership must first be proposed 
by a Senior Member, in good standing, acting as the 
Candidates' Sponsor. The Sponsor, by letter to 
the Secretary of the Board, shall not only recommend 
the Candidate, but also state his or her willingness 
to orient his or her Candidate regarding course and 
Club rules. Upon the acceptance of the Candidate, 
in his or her letter, the Sponsor shall list three 
(3) other references on behalf of his or her 
Candidate; one (1) of whom shall be another Senior 
Member in good standing. 

The Secretary, upon receipt of the proposal, shall 
immediately notify the Membership Chairman. The 
Membership Committee shall then contact the four (4) 
references as to the Candidates' financial 
responsibility, character, integrity and any other 
information the Committee may deem necessary. If 
the Membership Committee finds that a Candidate is 
not worthy of membership, the Chairman shall so 
inform the Board. 

Once a Candidate is screened, and recommended for 
acceptance by the Membership Committee, he/she must 
appear before the Board of Governors prior to 
approval. Seven (7) Members shall constitute a 
quorum for purpose of acceptance or rejection. Two 
(2) negative votes by any Member of the Board will 
reject the acceptance of any Candidate. If a 
Candidate is rejected by the Board, he/she may not 
reapply for membership for a period of two (2) 
years. Upon approval by the Board, an accepted 
Candidate's name shall be posted on the bulletin 
board for a period of two (2) weeks for scrutiny by 
the general membership. 

Any Senior Member, in good standing, may write a 
letter to the Secretary objecting to the admission 
of any Candidate for membership. If two (2) or more 
such letters are received, it will be necessary to 
so inform the Sponsor of the Candidate; who, in 
turn, shall have the right to appear before the 



-3- 



312 



Board to support his or her Candidate. The Board, 
sitting as a Committee on Admissions, shall then 
re-evaluate the Candidate and either accept or 
reject the plea of the Sponsor. Two (2) negative 
votes will reject the Candidate. 

E. Once a Candidate has been screened, approved and 
accepted for membership, his/her admission is 
automatic, providing there is not a waiting list 
for admission. In the event there is such a list, 
the Candidate's name shall be placed on said list 
in order of his/her date of application, until such 
time as an opening in the classification is 
available. However, this does not obligate the 
Committee on Admissions to necessarily accept those 
heading the waiting list in preference to applicants 
who may have been placed on the waiting list at a 
later date. 

F. Upon admission, all fees such as initiation and the 
pro-rated amount of the yearly dues must be paid 
prior to the use of Club facilities. 

G. All Candidates must be informed of their status as 
to rejection, acceptance on a waiting list, or 
admission within ninety (90) days of their date of 
application. 



SECTION II, 



A. The Board of Governors may transfer a Member from 
one (1) membership classification to another 
classification in the event of an age or residence 
change by a said Member. Existing dues and initia- 
tion fees shall be changed as of the date the Board 
makes this determination either on its own 
authority, or at the request of the individual 
Member . 

B. The Board of Governors may declare any category of 
membership of the Club to be closed at any time, 
when, in its discretion, it is in the best interest 
of the Club to do so. 

C. At any time the membership is declared to be 
closed. Candidates may be encouraged to apply for 
membership and be placed on the waiting list until 
such time as the membership shall be declared open. 



-4- 



313 



SECTION I. 



SECTION II. 



ARTICLE V 
RESIGNATION AND LEAVE OF ABSENCE 



Any Member, in good standing, and, with no indebted- 
ness to the Club, may resign. The resignation shall 
be in writing, addressed to the Board of Governors, 
and must be filed with the Treasurer to release the 
Member from liability for dues. Any indebtedness 
incurred for any phase of the Club operation prior 
to the date of receiving said resignation at the 
Club office will be considered a liability. All 
Senior Members resigning or otherwise losing their 
membership shall forfeit their equity in the Club. 

Members who resign and who, at the time of resigna- 
tion, were in good standing may be re-elected to 
membership by the Board with payment of one-half (%) 
of the then current initiation fee by the following 
procedures outlined in Article IV. 



A. Any Member, in good standing, with no indebtedness 
to the Club, may request a leave of absence due to 
illness of prolonged duration. The conditions for 
granting a leave of absence will be the same as 
those outlined above in Article V, Section I A on 
resignation except the Member requesting leave shall 
be carried on the roll as "on leave" and his/her 
dues shall be suspended until the termination of 
his/her illness or the Member requests, in writing, 
reinstatement to active status. 

B. The Board of Governors, at its discretion, may con- 
sider a leave of absence for a reason other than 
illness if there are extenuating and unusual 
circumstances surrounding such a request by a 
Member . 

C. In no case will leave be granted for more than one 
(1) year. If more time is needed, a new request 
must be submitted by the Member or someone desig- 
nated to act on his/her behalf. 



-5- 



314 



ARTICLE VI 

SUSPENSION AND EXPULSION 

SECTION I. 

Any Member violating any rules of the Club or guilty of 
any misconduct, and especially any Member whose conduct shall be 
injurious to the character or interest of the Club, may receive a 
Letter of Reprimand with a warning or be suspended or expelled by 
the Board of Governors. No Member shall be suspended or 
expelled without an opportunity to be heard. In the event the 
Board agrees that suspension and/or expulsion is being 
considered, the Member must be notified by certified mail that a 
hearing will take place within ten (10) days of notice to 
him/her. The notice will list the time, place, date and charges. 

SECTION II. 

If, after the hearing, the Board agrees to a suspension, 
said suspension shall automatically be for a minimum of two (2) 
weeks. Suspension will be valid when a majority of the Board 
present so votes. 

If the Board agrees to expulsion, it shall be valid when 
a two-thirds (2/3) majority of the total Board so votes. 

SECTION III. 

All suspended or expelled Members shall be denied all 
Club privileges and denied access to Club property. 

Expelled Members shall be dropped from the rolls, and may 
never again apply for membership to The Wyoming Valley Country Club 
and it shall be so recorded in the minutes of the Club. 



ARTICLE VII 

FEES AND DUES 

SECTION I. 

The Board of Governors shall have the power to determine 
the annual dues and golf fees; to establish initiation fees; to 
set assessment rates; and, to levy any charges it may deem neces- 
sary to maintain the financial stability of the Club. 



-6- 



315 



SECTION II. 

The fiscal year will be considered as the first of 
October of the calendar year until the 30th of September of the 
following calendar year. 

A. The annual dues are payable on the first of 
October, however, the amount due may be 
pro-rated on a schedule approved by the Board 
of Governors, except for new Members who shall 
pay all fees as directed under Article IV, 
Section I F of these By-laws. 

B. Senior Member applicants accepted after July 
1 pay half-year dues, plus full initiation 
fees for that fiscal year. 

SECTION III. 

When the dues, or any other indebtedness to the Club, 
remains unpaid, by a Member, for a period of twenty (20) days 
following the month in which said indebtedness occurred, the Mem- 
ber shall be considered in arrears. The Treasurer shall then 
send a second statement to the Member advising him or her that 
the Member's name shall be posted unless the account is paid 
within ten (10) days from the date of such notice. At the end of 
this ten (10) day period, the Member will then be in arrears for 
thirty (30) days, and, if his/her debt is still unpaid, he or she 
shall be posted by the Treasurer. ONCE THE MEMBER'S NAME IS 
POSTED, HE OR SHE WILL BE CONSIDERED DELINQUENT AND SHALL BE 
DENIED ALL PRIVILEGES OF CLUB MEMBERSHIP, INCLUDING ADMISSION TO 
THE CLUB PROPERTY. 

The Treasurer shall notify the Board of Governors when 
Members are posted. When the indebtedness of a Member remains 
unpaid for ten (10) more days after being posted, or a total of 
forty (40) days following the month in which said indebtedness is 
incurred, the Board of Governors shall then declare such member- 
ship to be forfeited, and the delinquent shall thereupon cease to 
be a Member of the Club. Any member thus forfeiting a membership 
may be considered for reinstatement upon payment of all arrears, 
and requesting, in writing, that the Board of Governors reinstate 
him or her. The individual concerned shall not become an active 
Member until he or she is so advised that the request is granted. 
A favorable vote by the Board of Governors present at any meeting 
of the Board will be necessary for reinstatement. 



-7- 



316 



When circumstances seem to justify such action, the 
Board of Governors may authorize for non-payment of indebtedness 
when said Member is known to be ill or absent from home. 



ARTICLE VIII 
OFFICERS 



SECTION I, 



The officers shall be a President, First and Second 
Vice-Presidents, Secretary, Treasurer (who will also 
be the Finance Chairman), four (4) Governors, and 
the respective chairmen of the Golf, Green, House 
and Membership Committees provided for in Article X 
of these By-laws, and these officers shall consti- 
tute the Board of Governors. 

Quorum - At all meetings of the Board, the 
majority of the Officers in office shall be neces- 
sary to constitute a quorum for the transaction of 
business, and, the acts of a majority of the 
officers present at a meeting at which there is a 
quorum shall be the acts of the total Board of 
Governors. 



SECTION II. 

In case of any office becoming vacant for any cause, the 
Board of Governors shall fill the office by appointment for the 
remainder of the term. 

SECTION III. 

Effective in fiscal year 1987/88 and thereafter, officers' 
terms of office shall be as follows: 

The President, First Vice-President and two (2) of 
four (4) Governors shall be chosen at an annual 
meeting and shall hold office for two (2) years. 
The Second Vice-President, Secretary and Treasurer 
shall be chosen at the annual meeting and shall hold 
office for one (1) year. 



-8- 



317 



SECTION IV. 

Above officers shall be chosen at the annual meeting 
by a majority of votes cast by the Senior Membership present and 
by way of absentee ballots cast. Election need not be by ballot 
except in cases where an opposing slate has been posted. 

SECTION V. 

The President, or in his/her absence, the First or Sec- 
ond Vice-President shall, at least thirty (30) days prior to the 
annual meeting, appoint a committee of five (5) Members, not more 
than two (2) of whom shall be officers of the Club, and the com- 
mittee shall nominate a slate of candidates for all vacancies 
about to occur. The proposed candidates will be posted on the 
bulletin board at least twenty (20) days before the date of the 
annual meeting. Any five (5) Senior Members may nominate other 
candidates for the same offices, but the names of such candidates 
must be posted on the bulletin board at least ten (10) days prior 
to the annual meeting. 

The names of the Senior Members placing the candidate's 
name or names in nomination must be signed on the posting. No 
Member shall be eligible to any office unless nominated and 
posted as aforesaid. 

The Secretary of the Club shall have ballots prepared 
containing all the names so posted, and furnish the same to the 
Members at the opening of the meeting when the election is to 
take place. If there is no slate or candidates for office in 
opposition to those candidates recommended by the nominating 
committee, voting need not be by ballot. 

The Secretary shall also have available a current list 
of Senior Members, in good standing, all of whom shall be 
entitled to one (1) vote. 

If there is more than one (1) candidate for any office, 
voting shall be by ballot. If voting by ballot, the President 
shall appoint three (3) Judges of Election from the Senior 
Membership. They, in turn, will name one (1) of their Members as 
Chairman. None of the judges shall be candidates for office. 
The judges shall take all action necessary to ensure fairness to 
all concerned, to tally the votes and announce the results of the 
election to the membership. 



-9- 



318 



A. When voting is by ballot, an Absentee Ballot 
will be available in the office for any Senior 
Member who cannot be present to vote on election 
day . 

B. Senior Members must sign for an official Absen- 
tee Ballot, seal and return the ballot prior to 
election day in order for it to be placed in the 
ballot box by the Chairman of the Election 
Committee . 

C. The number of Absentee Ballots placed in the 
election box will be duly recorded in the Min- 
utes of the Club. 

D. Only Senior Members, in good standing, with no 
indebtedness to the Club, who have been Members 
for two (2) years, are eligible to vote. 



ARTICLE IX 
DUTIES OF OFFICERS 



SECTION I. 



PRESIDENT - The President shall be the chief executive 
officer of the Club. The President shall preside at all meetings 
of the Board of Governors and at all meetings of the general 
membership. The President shall, with the Secretary, sign all 
written contracts and obligations of the Club and perform such 
other duties as may be required by these By-laws or the Board of 
Governors. The President shall appoint all committees and shall 
be an ex-officio member of all such committees. The President 
shall arrange for an annual audit of the accounts of the 
Treasurer, and present an annual report on the business of the 
Club to the membership. Such report to be given either in writ- 
ing and mailed to each Member, presented orally at a business 
meeting, or a copy of the report placed in the files at the 
office, after notifying each Member of his/her right to study 
said report. 

SECTION II. 

VICE-PRESIDENTS - The first Vice-President shall, in 
the absence or disability of the President, perform the duties 



-10- 



319 



and exercise the powers of the President and shall perform such 
other duties as may be assigned to him/her by the Board of 
Governors. The Second Vice-President assumes responsibility if 
both the President and First Vice-President are disabled or 
absent from any meetings. 

SECTION III. 

SECRETARY - The Secretary shall attend all meetings of 
the Board and of the membership and act as clerk thereof, and 
record all the votes and minutes thereof in books to be kept for 
that purpose. The Secretary shall notify all Members of their 
election to office, arrange to have the proper people informed of 
all meetings as to the time, place and purpose. The Secretary 
shall be co-signer, with the President, of all written contracts 
and obligations of the Club. The Secretary shall conduct or 
cause to be conducted, all official correspondence of the Club 
and shall see that such correspondence is properly preserved and 
filed until otherwise disposed of by the Board. In the event 
that he/she shall be absent at any meeting duly called, he/she 
shall arrange to have the minutes of all previous meetings made 
available to the Board for their edification when necessary. In 
such absence, the President shall appoint any Board Member in 
attendance as Temporary Secretary for the recording of the 
minutes. 

SECTION IV. 

TREASURER - The Treasurer shall be the chief financial 
and accounting officer and shall cause full and accurate accounts 
of receipts and disbursements to be kept in books belonging to 
the Club. The Treasurer shall render to the President, and to the 
Directors, at regular meetings of the Board, or whenever the 
President or the Board may require, an account of all his/her 
transactions as Treasurer and the financial state of the Club. 
The Treasurer shall cause to be deposited all funds of the Club 
in one (1) or more of the banks in the Wyoming Valley area, in the 
name and to the credit of the Wyoming Valley Country Club. The 
Treasurer shall send out bills for dues and all other indebted- 
ness to the Club, as specifically set forth in Article VIII 
Sections II and III of these By-laws or as may be ordered by the 
Board. The Treasurer shall sign and countersign all such 
instruments as may be required by his/her signature as an officer 
of the Club. The Treasurer shall perform all such other duties 
as may be properly assigned to him/her by the Board, one (1) of 
which will be Chairman of the Finance Committee. 



-11- 



320 



SECTION V. 

THE BOARD OF GOVERNORS - This body shall exercise gen- 
eral supervision of the affairs, funds and property of the club 
and to this end is invested with all the powers of the Club. It 
shall make such house and ground rules as may be deemed 
necessary. It shall make and enforce all regulations as it may, 
from time to time, feel are essential for the proper maintenance, 
care and use of the golf course; including, but not restricted to, 
regulations providing for the registration of golfers, and the 
use of the course by registered golfers only. It shall set 
regulations providing for the establishment, imposition and col- 
lection of golf dues or charges and green fees. It shall set any 
regulations necessary to prevent damage or congestion of the golf 
course. The Board shall meet on call of the President or on 
written request of any three (3) Board Members. Due notice shall 
be given by the Secretary of such meeting. A majority of the 
Members of the Board in office shall be necessary to constitute a 
quorum as specified in ARTICLE VIII, SECTION I B. 

ARTICLE X 

COMMITTEES 

SECTION I. 

Immediately after the annual election, the President 
shall appoint, with the approval of the Board, any committees 
that are deemed necessary or desirable for the successful opera- 
tion of the Club for the ensuing year. It shall be mandatory 
that the standing committees be Finance, House, Greens and 
Grounds, Membership and Golf Committees. Committees shall not 
consist of more than five (5) Senior Members. The President 
shall designate the chairman of each committee. The committees 
shall be delegated authority to fulfill their mission, subject to 
the approval of the Board, and, for purposes not inconsistent 
with these By-laws. Each committee chairman must submit his 
annual anticipated budget for the coming year for scrutiny by the 
Finance Committee. Final budgets must be presented for Board 
approval at the regular meeting of the Board in the month of 
March following the January election of officers. Once approved 
by the Board, the committee is free to expend funds as needed. 
Any unexpected expenditures beyond the funds already budgeted 
roust be submitted for Board approval. All monies received or 
expended by all committees roust be handled by the office under 
the supervision of the Club Treasurer. All members of any 
special committee shall serve until their successors have been 



-12- 



321 



appointed or until the Board decides that a particular committee 
is no longer necessary. 

A. FINANCE COMMITTEE - This Committee, subject to the 
Board, shall have general supervision of the finances 
of the Club; help other committees determine their 
financial needs for the year; help determine the 
Club's total yearly budget; and, act in an advisory 
capacity in reference to all financial matters 
affecting the Club. The elected Treasurer will be 
the Chairman of this Committee. 

B. HOUSE COMMITTEE - The House Committee, subject to 
Board approval, shall have full charge of the 
clubhouse, and any buildings where refreshments, 
articles or supplies are sold. Keeping within its 
established budgetary allowance, it shall have 
authority to make all purchases necessary for the 
proper maintenance and operation of each building 
and facility under its supervision. It shall deter- 
mine the prices to be charged for all articles and 
supplies served in any facility under its jurisdic- 
tion and shall prescribe any special terms and con- 
ditions under which Members or outside agencies may 
use the facilities under its charge for private 
occasions. This Committee shall supervise the 
employment and discharge of all personnel needed to 
properly fulfill its obligations to the membertship. 
It shall be the duty of this Committee to make the 
necessary house rules and regulations that all 
Members are to abide by and to have said rules 
printed and posted in a conspicuous place in the 
golf clubhouse. 

C. GOLF COMMITTEE - The Golf Committee, subject to 
Board approval, shall arrange and conduct all 
tournaments, exhibition matches and other special 
golf events. This Committee shall consult with 
other Committees that may be involved, such as the 
House Committee, as to the dates of such events and 
will notify Members of said dates and conditions 
pertaining to such events. It shall have the 
authority to employ, supervise or discharge extra 
tournament personnel, and to purchase such articles 
or supplies as may be necessary for the efficient 
conduct of such special events. It shall have 
charge of all publicity for special events and shall 
select, purchase, and award any prizes which are won 



-13- 



322 



by the contestants. During special golf events 
only, it shall have charge of carts, the caddie 
area, caddie master and caddies fixing the latter's 
tournament fees. 

The Golf Committee will conduct and supervise any 
inter-club matches held during the season. This 
Committee shall organize and select Members to rep- 
resent the Club at any such matches. Along with the 
House Committee, they shall provide for the 
reception and entertainment of the visiting teams. 
The Golf Committee shall be responsible for 
determining the handicaps of all Club golfers and 
for posting such handicaps. 

D. GREENS AND GROUNDS COMMITTEE - This Committee, 

known simply as the Greens Conmiittee, subject to 
Board approval, shall have full charge of the golf 
course and grounds of the Club property. This 
includes all trees, shrubs, vines, road, walk, cart 
paths and automobile parking spaces on said property 
and such buildings as not specifically covered by 
the House Committee in Article X B. This Committee 
shall employ such personnel and procure such 
articles, tools, equipment and supplies as may be 
necessary for the proper upkeep and maintenance of 
such facilities that come under its jurisdiction. 
Any major changes or alterations on the course or 
grounds beyond what would be considered as routine, 
every day procedure must first be presented to the 
Board for discussion and approval. Since this Com- 
mittee is directly concerned with the golf course, 
and since said course is the basis of the entire 
Club operation, it shall be empowered, after consul- 
tation with the greenskeeper , to decide when and if 
the course is being damaged for any reason, such as 
weather conditions, use of golf carts, or 
negligence, and to take whatever steps to remedy 
such situations as may be deemed necessary. In the 
best interest of the Club, this could mean limiting 
the use of carts, closing certain area to play, or 
complete closing of play at the course until the 
problem is resolved. This Committee shall be 
responsible for proper training and supervision of 
all caddies. 

It shall be the duty of this Committee to make the 
necessary rules and regulations concerning the 



-14- 



323 



course and carts that all Members are to abide by 
and to have said rules printed and posted in a 
conspicuous place in the Clubhouse. 



MEMBERSHIP - This Committee shall be responsible 
for screening candidates in all membership 
classifications before presentation to the Board of 
Governors for approval. 



F. Standing Committee Chairmen are voting members of 
the Board. 

a. Immediate Past President is Honorary Member 
of Board for one (1) year, but has no voting 
privileges. 

G. Long Range Planning Committee is a special committee 
of the Club. 

It shall consist of nine (9) Members whose individ- 
ual term will be five (5) years. These Members will 
be elected at the annual meeting 

The Committee will elect their chairman annually 
after the general election and he/she shall be a 
voting Member of the Board. 

The Long Range Planning Committee is a Special 
Committee of the Club, and as such, will be charged 
with the responsibility of planning the future 
growth and development; refurbishing the present 
facility; and, replacing the equipment, buildings, 
grounds, etc. , in a sound and orderly manner 
consistent with logical development of The Wyoming 
Valley Country Club. Said Committee will formulate 
its plans and report to the Board, which will then 
be responsible for the appropriate action within the 
confines which that Board sees proper. 

The recommendations of the Long Range Planning 
Committee are not to be considered binding on the 
Board, but since they are the recommendations of a 
Committee of the Club, their plans must be given 
very serious consideration by the Board. 



324 



SECTION II. 

CAPITAL IMPROVEMENTS 

A. Capital Improvement Budgets shall not exceed ten 
percent (10%) of the audited, preceding year's dues 
income, without a special membership meeting on the 
proposed budget. 

B. In the event capital expenditure actual figures may 
exceed budgeted figures by ten percent (10%), a Spe- 
cial Membership Meeting must be called by the Board 
to inform the membership. 

C. When and if it becomes necessary to borrow from any 
lending institution to finance capital improvements, 
a Special Meeting of the Membership must be held to 
inform the Members of the project (s) involved prior 
to any commitment by the Club, 

ARTICLE XI 

MEETINGS 

SECTION I. 

There shall be an Annual Meeting of the Club for the 
election of officers which shall be the second Saturday of Janu- 
ary in the clubhouse at a time to be determined by the Board. 

A. Notice of such meeting shall be posted in the 
clubhouse not less than two (2) weeks before the 
meeting date. 

B. Fifteen (15) Members shall constitute a quorum for 
the Annual Meeting. 

C. The audited Financial Report for the preceding year 
must be mailed to all Senior Members by December 1. 

D. In the event of a tie vote for any office, a Special 
Election for the office/officer in question will be 
held not later than the first Saturday in February. 



-16- 



325 



SECTION II. 

The order of business shall be as follows: 

1.- Reading the minutes of the last stated meeting, and 
of any special meetings held thereafter. 

2. Report by the President for the Board. 

3. Report of the Treasurer. 

4. Appointment of Auditor. 

5. Report of standing Committees. 

6. Election of officers. 

7. New Business 

8. Adjournment. 

SECTION III. 

Special Membership Meetings may be called at the discre- 
tion of the President and must be called upon written request of 
ten (10) Senior Members who shall state the specific purpose of 
the meeting. 

A. Special meetings must be held within twenty (20) 
days of such a request by either the President or 
Members . 

B. Each Member of the Club shall receive ten (10) day's 
notice, stating the place, time and purpose of the 
meeting. 

C. No business shall be transacted other than the 
stated purpose of the meeting. 

SECTION IV. 

QUORUM - Twenty-five percent (25%) of the Senior 
Membership shall constitute a quorum of the Club for special 
meetings. The acts of the majority of the quorum present shall 
be the acts of the total Senior Membership. Any decisions voted 
upon by the membership shall be considered to be binding upon the 
Board of Directors in any future meeting of the Board relating to 
the decision made at the special meeting. 



-17- 



326 



ARTICLE XII 

VISITORS 

SECTION I. 

Upon written request, by a Senior Member in good 
standing, the Secretary may issue an invitation to any person not 
a resident of Wyoming Valley to use the facilities of The Wyoming 
Valley Country Club for a two (2) week period. The same guest 
shall not be introduced more than twice in one (1) season and 
then only after an interval of at least one (1) month. The guest 
shall pay the required greens fee for each round of golf. No 
Member shall have three (3) introductions in force at any one (1) 
time. 

SECTION II. 

Should a non-resident guest of a Senior Member desire to 
use the Club beyond two (2) weeks, he/she may, if the Board 
approves, be granted a two (2) month guest card upon payment of 
one-fourth (*;) of the then current annual dues. 

SECTION III. 

The names and places of residence of such visitors, as 
outlined in the last two (2) sections, shall be recorded in the 
Pro Shop in a book kept for that purpose. Any Member who uses the 
privileges of these rules shall be held responsible for any debts 
or liabilities to the Club that may be incurred by any person 
he/she introduces or sponsors. 

ARTICLE XIII 

COLORS AND EMBLEM 

The colors of the Club shall be Blue and Red and the 
Club emblem shall be a Tomahawk. 



ARTICLE XIV 

EQUITY AND DISSOLUTION 

SECTION I. 

In the event that it is considered necessary or proper 
to dissolve the corporation, the Board of Directors shall notify 



-18- 



327 



all Members in good standing of a meeting to be held for the 
purpose upon not less than ten (10) day's written notice to each 
paid Member at his last known address. 

At the meeting so called, an election to dissolve the 
Corporation shall be made by a majority vote of all of the 
Members . 

Following the vote concerning dissolution, the Board of 
Directors may take whatever action they deem proper and necessary 
to wind up the Corporation by the sale of all of its assets pro- 
viding for the payment of all secured or unsecured obligations. 
After all debts and obligations of the Corporation are approved 
and paid, any assets remaining shall be distributed to Senior 
Members of the Club who are fully paid and in good standing on 
the date of dissolution, provided however, that only Senior Mem- 
bers who have been Members of the CLub in good standing for five 
(5) consecutive years immediately prior to the date of dissolu- 
tion shall be entitled to any equity distribution. 



ARTICLE XV 

AMENDMENTS 

These By-laws may be amended by a two-thirds (2./3) vote 
of the Members present at any regular or special meeting, pro- 
vided the proposed amendments shall be in writing, and shall be 
proposed by the Board of Governors, or by ten (10) Senior 
Resident Members two (2) weeks prior to the annual meeting, or a 
special meeting called for that purpose, and that the notice of 
said meeting shall contain a copy of the proposed additions or 
amendments. , , .. 



ARTICLE XVI 

EFFECTIVE DATE OF BY-LAWS 

These By-laws shall become effective on the date of a 
regular or special meeting of the Senior Members of the Club duly 
called for the purpose of their adoption. 



-19- 



328 



A. Richard Caputo 



EXHIBIT "4" 



FINANCIAL DISCLOSURE REPORT 

Nomination Report 



Report Required by the Ethics 
Krform Aa of 1989. Pub L No. 
1 01 -1 94. November SO. J 989 
(S use App 4 . Sec 101-112) 



1. Person Rtporting (Last name, first, rruddle initial) 
CAPUTO, A. RICHARD . 



2. Court or Organization 

US DIST CT MID DIST OF PA 



3. Date of Report 

08/01/1997 



4. Title (Article III judges indicate active or 

senior status: magistrate judges indicate 
fiill- or pan-time) 

U.S. DISTRICT JUDGE NOMINEE 



S. Report Type (check type) 

X Nominalion. Date 07/31/1997 



6. Reporting Period 

01/01/1996 
07/30/1997 



7. Chambers or Office Address 

387 WYOMING AVENUE 

P.O. BOX 20S9 

KINGSTON, PA 18704-2059 



8. On the basis of the information contained in this Report and any 
modincations pertaining thereto, it is in my opinion, in complianci 
with applicable laws and regulations. 



IMPORTANT NOTES: The instruaions accompanying this form must be followed. Complete all parts, 
checking the NONE box for each seaion where you have no reportable information Sign on the last page 



I. POSITIONS (Reporting individual only, see pp 9- 1 3 of Instructions) 

POSITION 

NONE {No reportable positions.) 

' VICE PRESIDENT AND DIRECTOR MAPLEMOOR, INC 



NAME OF ORGANIZATION / ENTITY 



2 SECTY, TREASURER & DIRECTOR 
3V.P., ASST. SECY t DIRECTOR 



THE LUZERNE FOUNDATION 



BACK MOUNTAIN HOLDINGS, INC. 



II. AGREEMENTS (Reponmgindivulual only: see pp. 14-17 of instructions.) 

DATE PARTIES AND TERMS 



n 



NONE (No reportable agreements ) 

Fees which have been billed, and those representing my work in progress not yet billed 
will be ascertained upon my departure from my office, and those sums will be remitted 
to me when received over the next twenty-four (24) months. 



III. NON-INVESTMENTINCOME (Reporting individual and spouse: see pp 1S-2S of Insii 
DATE PARTIES AND TERMS 



□ 



NONE (No reportable i 
1 1995 INCOME FROM LEGAL SERVICES 



2 1996 



INCOME FROM LEGAL SERVICES 



3 TO 7/97 INCOME FROM LEGAL SERVICES 



GROSS INCOME 

(yours, not spouse's) 



326,091.00 



294,877.00 



140,270.67 



329 



RNANCIAL DISCLOSURE REPORT 



Name of Penon Reponing 
CAPUTO, A. RICHARD 



Dale of Rcpon 
08/01/1997 



SECTION HEADING. (Indicale pan of repon ) 
SECTION 1. POSITIONS (cont'd.) 
Li. Position 



Name of Organization/Entity 



4 CO -TRUSTEE 

5 ASSISTANT SECRETARY 

6 ASSISTANT SECRETARY 

7 ASSISTANT SECRETARY 

8 ASSISTANT SECRETARY 

9 ASSIST7UJT SECRETARY 

10 ASSISTANT SECRETARY 

11 ASSISTANT SECRETARY 

12 PARTNER 

13 PARTNER 

14 PARTNER 



GRACE K. SHEA TRUST 

MCCARTHY ENTERPRISES, INC. 

PLAINCO, INC. 

BRONSBERG & HUGHES PONTIAC, INC. 

MIDDLE ROAD DEVELOPMENT CORP. 

MAGICORP, INC. 

FORSUNS , LTD . 

ROBBINS DOOR t SASH CO. 

DRUID ASSOCIATES 

ALAFAYA ASSOCIATES 

3 87 WYOMING AVENUE ASSOCIATES 



330 



Name ol Person Kcponing 

FINANCIAL DISCLOSURE REPORT CAPUTO, A. RICHARD 



Dale of Report 
08/01/1997 



IV. REIMBURSEME^fTS and GIFTS - iransportanon. lodging, food, cnlenainmeni 

(Includes those lo spouse and dependent children: use the parentheticals '{Si ' and '(DC)' to indicate reportable reimbu\ 
and dependent children, respectively See pp. 26-29 of Instructions.) 



SOURCE 

NONE (No such reportable reimbursements or gifts) 



DESCRIPTION 



V. OTHER GIFTS 



(Includes those to spouse and dependent children, 
respectively See pp. 30-33 of Instruaions } 



D 



SOURCE 

NONE (No such reportable gifts) 



r the parentheticals '(Sj ' and '(DQ ' lo indicate other gifts received by spouse and dependent children. 

DESCRIPTION VALUE 



VI. LIABILITIES 

(Includes those of spouse and dependent children; indicate where applicable, person responsible for liability by using the parenthetical '(S)' for separate 
liability of the spouse. '(J)' for joint liability of reporting individual and spouse, and '(DQ "for liabiliry of a dependent child. See pp 34-36 of Instructions.) 



D 



CREDITOR 

NONE (No reportable liabilities) 



1 FIRST UNION NATIONAL BANK 



DESCRIPTION 



LINE OF CREDIT 



2 


MELLON BANK 


3 


MBNA 


4 


FIRST NATIONAL COMM. BANK 


5 


FIRST NATIONAL MORTGAGE CORP. 


e 




7 





VALUE CODE* 



CREDIT CARD 


J 


CREDIT CARD 


J 


MTG. ON PROP. (3 87 WYO . AVE ASSOC.) 


N 


MORTGAGE ON PROPERTY (RESIDENCE) 


J 







> VALCODES:J=$15.000orlesj K=J15.001-$50.0(X) L=S50.001 lo J100.(X)0 M=J100.001-$250,000 N = $250.001-$500.000 

0=$5(X).001-$I.000.0(X) P1=$1,0(X).001-$5.000.000 P2 = $5.000.001-J25.000.000 P3 = J25.O0O.O01-J50.O0O.0OO P4 = $50.000.(X)1 or more 



331 



FINANCIAL DISCLOSURE REPORT 



Name of Penon Reporting 

CAPUTO, A. RICHARD 



Dale of Report 
08/01/1997 



VII. Page 1 INVESTMENTS and TRUSTS 



-■ income, value. iransacUons (includes those of spouse and 
dependent children . See pp. 37-54 of Instructions.) 



A. 
Description of AsseU 

Indicate where applicable, owner of 
the asset by using the parenthetical 


B. 

Income 
during 
reponing 


C. 

Gross value 
at end of 
reporting 


D. 

Transactions during reporting period 


individual and spouse. '(S) 'for sep- 
erate ownership by spouse. '(DQ ' 
for ownership by dependent child. 

Place '00 ' after each asset 
exempt from prior disclosure. 


(1) 

Amt. 

Code 

(A- 

H) 


(2) 

Type 

(e.g.. 

dividend. 

rent or 

interest) 


(1) 

Value 
Code 
(JP) 


(2) 

Value 

Method 

Code 

(QW) 


(1) 

Type 

(e.g.. 

buy, sell, 

merger. 

redcmp- 


If not exempt from disclosure 


(2) 
Date: 
Month- 
Day 


(3) 
Value 
Code 
OP) 


(4) 
Gain 
Code 
(AH) 


(5) 

Identity of 
buyer/seller 
(if private 




NONE (no rcponabtc income. assets, or 
transactions) 




















1 RENTAL PROPERTY 11 - RYE, NY 


D 


Rent: 


" 


W 












2 RENTAL PROPERTY 12 - RYE, NY 


D 


Rent 


M 


w 












3 FIRST UNION NAT ' L BANK - INTEREST 
CHECKING 


" 


Interest 


*" 


T 












4 DEAN WITTER REYNOLDS - IRA - GTE 
COMMON STOCK 


A 


Dividend 


J 


T 












5 DEAN WITTER REYNOLDS - IRA - GE - 
COMMON STOCK 


* 


Dividend 


J 


T 












6 DEAN WITTER REYNOLDS - IRA - 
CHRYSLER CORP. - COMMON STOCK 


A 


Dividend 


J 


T 












1 DEAN WITTER REYNOLDS - IRA - 
TCW/DW EMERGING MARKETS 


A 


Dividend 


J 


T 












B DEAN WITTER REYNOLDS - IRA - LIQ. 
ASSETS FUND 


A 


Interest 


J 


T 












9 DEAN WITTER REYNOLDS - IRA - 
COMPAO COMPUTER - COMMON STOCK 


A 


Dividend 


J 


T 












10 DEAN WITTER REYNOLDS - IRA - 
TRAVELERS-.^ETNA - COMMON STOCK 


* 


Dividend 


J 


T 












11 DEAN WITTER REYNOLDS - IRA - 
MOBIL CORP - COMMON STOCK 


A 


Dividend 


J 


T 












12 DEAN WITTER REYNOLDS - IRA - 

AMER. SAFETY RAZOR - COM. STOCK 


A 


Dividend 


J 


T 












13 DEAN WITTER REYNOLDS - IRA - 
CARNIVAL CORP. - COM. STOCK 


A 


Dividend 


J 


T 












H DEAN WITTER REYNOLDS - IRA - 

GENERAL MOT. CORP. - COM. STOCK 


A 


Dividend 


J 


T 












15 DEAN WITTER REYNOLDS - IRA - 
INGERSOLL RAND - COM. STOCK 


A 


Dividend 


J 


T 












16 DEAN WITTER REYNOLDS - IRA - 

COMPUTER ASSOC. INT'L - CM. STK 


* 


Dividend 


J 


T 












n DEAN WITTER REYNOLDS - IRA - 
HARLEY DAVIDSON - COMM. STOCK 


A 


Dividend 


J 


T 












1 Inc/Olin Codes: A-$ 1.000 Of less B=S1.001-J2,S00 C-K.501.$5.000 D>$3,O01-$15.00O E=$15.001-$50.000 
(Col. B1.D4) F-$50.001.$100,000 G=$100.001-$I,000.000 H1«J1.000.001-J5.000.000 H2=J5.000.001 ormore 


JVilCodes: J-J 15.000 or less K-$15.001-$50,000 L-J50.001-S100,000 M-$I0O.OOl-J250.0O0 N-$250,001-$500.000 
(Col.Cl.D3) O-JSOO.OOl-S 1.000,000 P|.$1.000.001-$5.000.000 P2-I5.O0O.001-J25.0OO.0O0 P3-$25.000.001-$50.000.000 P4.$S0.000.001 ocmore 


3 Vil Mlh Codes: Q= Appraisal R=Cost (real csuie only) S=Assessment T=Cash/Msrket 
(Col.C2) U-BookVdue V-Other W=Esumaled 



332 



FINANCIAL DISCLOSURE REPORT 



Name of Person Reporting 
CAPUTO, A. RICHARD 



Date of Repon 

08/01/1997 



VII. Page 2 I>fVESTMENTS and TRUSTS 



- income, value, iransaaions (includes those of spouse and 
dependent dOdren. See pp. 37-54 of Im 



A. 
Description of Assels 

Indicate where applicable, owner of 
the asset by using the parenthetical 
'(J)' for Joint ownership of reporting 
individual and spouse. '(S}' for sep- 
erate ownership by spouse. '(DC)' 
for ownership by dependent child. 

Place "(X) ■ after each asset 
exempt from prior disclosure. 


B. 
Income 

during 
reporting 


C. 

GiDss vabe 
at end of 
reporting 


D. 

Transactions during reporting period 


(1) 

Ami. 

Code 

(A- 

H) 


(2) 
Type 
C^g. 
dividend. 

inlerest) 


(1) 
Value 
Code 
(J-P) 


(2) 

Vabe 

Mednd 

Code 

(QW) 


(1) 

Type 

(e.g. 

buy. sell. 

merger. 

redemp- 


!f not exempt from disclosure 


(2) 
Date: 
Month- 
Day 


(3) 

Value 
Code 
(J-P) 


(4) 
Gam 
Code 
<A-H) 


(5) 

Identity of 
buyer/seller 
(if private 


NONE (no reportable income.assels. or 
transactions) 




















18 GRACE K. SHEA TRUST - AIR 
PRODUCTS- COMMON STOCK 


A 


Dividend 


J 


T 












19 GRACE K. SHEA TRUST - AMERICAN 
HOME PRODUCTS - COM. STOCK 


B 


Dividend 


« 


T 












20 GRACE K. SHEA TRUST - ATST - 
COMMON STOCK 


A 


Dividend 


K 


T 












21 GRACE K. SHEA TRUST - CHEVRON - 
COMMON STOCK 


B 


Dividend 


>" 


T 












22 GRACE K. SHEA TRUST - CHRYSLER - 
COMMON STOCK 


A 


Dividend 


J 


T 












23 GRACE K. SHEA TRUST - COCA COLA - 
COMMON STOCK 


A 


Dividend 


L 


T 












24 GRACE K. SHEA TRUST - COMPAQ 
COMPUTER - COMMON STOCK 


A 


Dividend 


K 


T 












25 GRACE K. SHEA TRUST - DUPOMT - 
COMMON STOCK 


A 


Dividend 


'' 


T 












26 GRACE K. SHEA TRUST - GE - 
COMMON STOCK 


A 


Dividend 


K 


T 












27 GRACE K. SHEA TRUST - GTE - 
COMMON STOCK 


A 


Dividend 


J 


T 












28 GRACE K. SHEA TRUST - JOHNSON ( 
JOHNSON - COMMON STOCK 


B 


Dividend 


L 


T 












29 GRACE K. SHEA TRUST - LUCENT 
TECH. - COMMON STOCK 


A 


Dividend 


J 


T 












30 GRACE K. SHEA TRUST - MICROSOFT - 
COMMON STOCK 


A 


Dividend 


K 


T 












31 GRACE K. SHEA TRUST - SARA LEE - 
COMMON STOCK 


B 


Dividend 


L 


T 












32 GRACE K. SHEA TRUST - SMITH-KLINE 
- COMMON STOCK 


B 


Dividend 


L 


T 












33 GRACE K. SHEA TRUST - HARLEY 
DAVIDSON - COMM. STOCK 


A 


Dividend 


J 


T 












34 GRACE K. SHEA TRUST - CARNIVAL 
CORP. - COMM. STOCK 


A 


Dividend 


K 


T 












llnc/Oain Codes: A-$1.000 or less B-SI.OO1-J2.500 C«K.5ai-J5,0O0 D"$5.001 -SI 5.000 E«$15.001-$5O.O0O 
(Col. BI.D4) F-$50,001-$100,000 G-S 100,001 -$1,000,000 Hl=$l,000.OOl-$5.OOO.O00 H2=$5.000.001 or more 


2V«lCo<les: J-$l 5.000 or less K-$15.001-J50.000 L-S50.00I-I100.000 M-$100.00l-$250.000 N-J250.O01-$500,OOO 
(Col.Cl,D3) O-J500.001 -J 1.000.000 Pl=$l,000.001.$5.000.000 P2.$5.OOO,0Ol-I25,0O0.OOO P3»$25.OOO.OOl-J5O.0OO.000 P4«J50.000,001 ormore 


3 V.1 Mlh Codes: Q-Apprais«l R-Cost(re»l estate only) S-Assessment T-CaslVMarkel 
(Col C2) U-Book Value VOlher W-Eslimaled 



333 



FINANCIAL DISCLOSURE REPORT 



Name of Person Reporting 
CAPUTO, A. RICHARD 



Dale of Rcpon 

08/01/1997 



VII. Page 3 INVESTMENTS and 



- incomf. valme. iransaaions (includes those of spouse and 
IKUdld dependent children See pp. 37-54 of Instructions.) 



A. 

Descripuon of Assets 

Indicate where applicable, owner of 
the asset by using the parenthetical 


B. 

Income 

during 

reporting 


C 

Gross value 
at end of 
reporting 


D 

Transactions during rcponing penod 


individual and spouse, '(S)'forsep- 
erate ownership by spouse. '(DO ' 
for ownership by dependerxt child. 

Place '(X) ' after each asset 
exempt from prior disclosure. 


(1) 
Ami- 
Code 
(A- 
H) 


m 

Type 
(=8. 
dividend. 
rent or 
interest) 


(1) 
Value 
Code 
(JP) 


0) 

Value 

Method 

Code 

(Q-W) 


(1) 

Type 

(c-g. 

buy. sell. 

merger. 

redemp- 


If not exempt from disclosure 


(2) 
Date: 
Month- 
Day 


(3) 

Value 
Code 
(J-P) 


(<) 
Gain 
Code 
(A-H) 


(5) 

Identity of 
buyer/seller 
(if private 




NONE (no reporuble income.assets. or 
transactions) 


























35 GPWCE K. SHEJi TRUST - ACTIVE 
ASSETS - MONEY MARKET 


B 


Dividend 


J 


T 












36 FARMER BROTHERS - COMMON STOCK 
IS] 


A 


Dividend 


K 


T 












37 FIRST UNION NATIONAL BANK - 
COMMON STOCK (SI 


C 


Dividend 


M 


T 












38 RYKOFF-SEXTON - OPTIONS - COMMON 
STOCK 




None 


J 


T 












39 DEAN WITTER REYNOLDS - IRA ISI 
-TWC/ OW CR, EQ. TR. , MUT FD 


A 


Dividend 


J 


T 












40 DEAN WITTER REYNOLDS - IRA ISI - 
DW AM VALUE/MNY MARKET 


A 


Interest 


J 


T 












41 DEAN WITTER REYNOLDS - IRA 

-CARLISLE CO., INC. - COM. STOCK 


A 


Dividend 


J 


T 












42 DEAN WITTER REYNOLDS - IRA- 
FEDERAL EXPRESS CORP. - COMMON 


A 


Dividend 


J 


T 












4 3 DEAN WITTER REYNOLDS - IRA- 
DUPONT EI DENEMOURS - COMMON 


A 


Dividend 


J 


T 












4 4 GRACE K. SHEA TRUST - FEDERAL 
EXPRESS CORP. - COMMON 


A 


Dividend 


K 


T 












45 AMERICAN SAFETY RAZOR IS] - 
COMMON STOCK 


A 


Dividend 


J 


T 












46 80 ACS VACAWT LAND - ORANGE CTY . 
INEAR ORLANDO! FLORIDA IS] 









W 
















































































































1 Inc/Giin Coda: A-$1.000 or less B-SI.001-n.500 C-K.501.JS.000 D-$S.001-$15.000 E-$IS,O01-$50.000 
(ColBl.D4) F-J50.001-S100.000 O-S100.00l-Sl,000.000 Hl-J1.0O0.0Ol-$5.000.000 H2 =$5,000,001 or more 


2V»ICoda; J-Jl 5,000 or less K»$15,0Ol-$50.O00 L=$50.001-$10O.000 M-$100.001.S250,000 N-$250.001-J500,000 
(ColCl,D3) O-S500.001-S 1.000,000 Pl-$1.000.001-S5.000,000 P2=I5,DOO.OOI-$25.000.000 P3-S25,OOO.OOl-J50.0OO.000 P4-$50.000,001 or more 


3 V«l Mlh Codes: Q-Appr»is»l R-Cosl <re«l estate only) S=Assessnient T=Cash/M»ricel 
(Col.C2) U-Book Value VOther W=Estimated 



334 



FINANCIAL DISCLOSURE REPORT 



Name of Person Reporting 
CAPUTO, A. RICHARD 



Date of Report 
08/01/1997 



VIII. ADDITIONAL INFORMATION OR EXPLANATIONS. 

X NONE (No adduional information or explanations ) 



335 



HNANCIAL DISCLOSURE REPORT 



Name of Person Reporting 
CAPUTO, A. RICHARD 



Date of Report 
08/01/1997 



IX. CERTIFICATION 

In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory Committee on 
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory 
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children 
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all the information given above (including information pertaining to my spouse and minor or dependent 
children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported 
was withheld because it met applicable statutory provisions permitting non-disclosure. 

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial Conference 
regulations. 



Signature 



^l±_h7 



Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil 
and criminal sanctions (5 U.S.C. App. 4, Section 104). 



FILING INSTRUCTIONS 

Mail original and three adilitional copies to: 

Committee on Financial Disclosure 
Administrative Office of the United States Courts 
One Columbus Circle, N.E. 
Suite 2-301 
Washington, D.C. 20544 



336 



A. Richard Caputo 



EXHIBIT "S* 



FINANCIAL STATEMENT 
NET WORTH 











Notes payable to banks-secured 




-0- 




Cash on hand and In banks 


27 


916 


39 


Notes payable to banks-unsecured 


4 


960 


18 


U.S. Government securities 




-0- 




Notes payable to relatives 




-0- 




Listed securities 




-0- 




Notes payable to others 




-0- 




Unlisted securities 


15 


000 


00 


Accounts and bills due 


12 


800 


00 


See Schedule "A" 








Unpaid Income tax 


20 


OOC 


00 


Accounts and notes receivable: 








(Estimated for 1997) 








Due from relatives and friends 




-0- 




Other unpaid tax and interest 




-0- 




Due from others 


76 


153 


00 


Real estate mortgages payable 


516 


964 


43 


Doubtful 


6 


700 


00 


See Schedule "0" 








Real estate owned 


1,110 


000 


00 


Chattel mortgages and other 




-0- 




See Schedule "B" 








liens payable 








Real estate mortgages receivable 




-0- 




Other debts 




-0- 




Autos and other personal property 


15 


000 


00 










Cash value - life Insurance 


10 


259 


00 










Other assets 
















Retirement Plan 


88 


716 


18 










Interest in Partnerships 


8 


000 


00 










See Schedule "C" 
























Total Liabilities 


554 


724 


61 










Net Worth 


803 


049 


96 


Total assets 


1,357 


774 


57 


Total Liabilities and Net Worth 1 


,35^ 


774 


57 


CONTINGENT LIABILITIES 








GENERAL INFORMATION 






As endorser, comaker or guarantor 




-0- 




Are any assets pledged? No 

Are you defendant in any suits or 








On leases or contracts 




-0- 




legal actions? No. 








Legal Claims 




-0- 




Have you ever taken bankruptcy? No 








Provision for Federal Income Tax 




-0- 












(See Liabilities above) 
















Other special debt 




-0- 













337 

A. Richard Caputo 



SCHEDULE "A" - UNLISTED SECURITIES 



$15,000.00 (Bond) Huntsville Golf Club - 20 years - 8? 
Bond - Cost $15,000.00 



SCHEDULE "B" - REAL ESTATE OWNED 



Personal Use 

Residence 

Shavertown, Pennsylvania, 18708 - owned by A. Richard Caputo 

and Rosemary S . Caputo 
Purchased 1974 
Market Value - $210,000.00 



Investments in Real Estate 

11 New Street 

Rye, New York 10580 - owned by A. Richard Caputo 
purchased 1975 
Market Value - $200,000.00 

17 New Street 

Rye, New York 10580 - owned by A. Richard Caputo 
purchased 1975 
Market Value - $200,000.00 

3 87 Wyoming Avenue 

Kingston, Pennsylvania 18704 - owned by A. Richard Caputo and 

Charles A. Shea, III as 

co-partners 

Purchased 1994 

Market Value - $500,000.00 



338 

A. Richard Caputo 



SCHEDULE "C" - PARTNERSHIP INTERESTS 



Druid Associates - 25% interest - owns an interest in an apart- 
ment building in Mamaroneck, New York, and an 
interest in an apartment building in 
Fleetwood, New York, with other investors. 
Current value of my interest is estimated at 
$5,000.00. 



Alafaya Associates - 16 2/3% interest - owns an interest in the 
same apartment building in Fleetwood, New 
York, in which Druid Associates owns an 
interest. Current value of my interest is 
estimated at $3,000.00. My wife also owns 
16 2/3% interest. 



SCHEDULE "D" - REAL ESTATE MORTGAGES 



First Union Mortgage Corp. 

Balance: $8,173.40 

Security: Residence - Shavertown, Pennsylvania 



First Union Mortgage Corp. 

Balance: $132,897.69 

Security: Residence - Shavertown, Pennsylvania 

First National Community Bank 

Balance: $375,893.34 

Security: 387 Wyoming Avenue, Kingston, Pennsylvania 

Mortgagors: A. Richard Caputo and Charles A. Shea, III 



NOMINATIONS OF RONALD LEE GILMAN AND 
SONIA SOTOMAYOR (U.S. CIRCUIT JUDGES); 
CHARLES J. SIRAGUSA, ALGENON L. 
MARBLEY, DALE A. KIMBALL, JAMES S. 
GWIN, AND RICHARD CONWAY CASEY (U.S. 
DISTRICT JUDGES) 



TUESDAY, SEPTEMBER 30, 1997 

U.S. Senate, 
Committee on the Judiciary, 

Washington, DC. 
The committee met, pursuant to notice, at 3:02 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Mike DeWine pre- 
siding. 

Also present: Senators Hatch, Thurmond, Thompson, Torricelli, 
Sessions, and Ashcroft. 

OPENING STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR 
FROM THE STATE OF OHIO 

Senator DeWine. I would invite my colleagues, I see Senator 
Glenn and Senator Bennett, to come immediately to the table. We 
are now proceeding to hearings for two circuit court judges and five 
district court judges. We need to be out of here by 4:30 p.m., which 
I assume we can be. 

I would say to all of the prospective judges who are here that it 
is certainly possible that we may submit some written questions for 
the record, either because we run out of time or because some 
members are not here. Some members may have to leave, so you 
should be prepared to receive written followup questions from 
them, as well. 

Let me start, if I could, with the chairman of the committee. Sen- 
ator Hatch. Mr. Chairman. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
THE STATE OF UTAH 

Senator Hatch. Thank you, Mr. Chairman. I appreciate this op- 
portunity to appear before the committee for and on behalf of Dale 
A. Kimball, who has been nominated for district court judge for the 
District of Utah. I am also happy to be here with my friend and 
colleague, Senator Bennett, as well. 

Mr. Kimball obtained his B.S. from Brigham Young University in 
August 1964, his juris doctorate from the University of Utah in 
1967, became an associate with the largest law firm in Utah and 

(339) 



340 

one of the most prestigious, was a partner and then helped form 
one of the major firms in Salt Lake City, Kimball, Parr, Waddoups, 
Brown & Gee. He has been the senior partner in that law firm 
from 1975 to the present. He was an associate professor of law at 
the Brigham Young University School of Law from 1974 to 1976, 
and adjunct professor from 1976 to 1979. 

Mr. Kimball has extensive experience in the practice of law and 
has been engaged in general practice, title work, oil and gas and 
mineral matters, contract negotiations, and litigation, including se- 
curities law, shipping disputes, administrative agency matters, and 
criminal defense. Since 1975, he has been engaged primarily in 
business litigation, including securities fraud, insurance, antitrust, 
contract, and energy cases, along with some arbitrations and mu- 
nicipal litigation. 

He has had extensive experience in the practice of law, in the 
practice of teaching law, and as a fine lawyer in the Utah area. He 
has authored several articles. He is a member, of course, of the ap- 
propriate bar associations and is one of the finest people I know. 

Dale Kimball is not only an excellent lawyer, he is a person of 
the highest integrity, the highest ability, a person we can rely 
upon, a person who understands the role of judging, and a person 
who, literally, I think, will elevate the Federal bench in this coun- 
try. 

There is so much more we could say. He is here with his wonder- 
ful wife. I have known him for a long time. I have total respect for 
him, as I think do all people in Utah and especially all members 
of the bar association. 

As you know, in any of these situations, it is very difficult to 
make a decision as to who should replace another Federal district 
judge. There are so many people who can be qualified for that posi- 
tion, and there are a number in Utah who certainly do qualify, but 
I know of none better, none greater, or none with more ability than 
Dale Kimball. I think he will become one of the great judges in 
America and I would expect no less from him. 

I recommend to the committee that they approve this nomination 
as quickly as possible and help us to resolve the problem of an 
open seat on that bench, which has been open since June of this 
year. 

Senator DeWine. Senator, thank you very much. 

Let me turn now to the junior Senator from Utah, Senator Ben- 
nett. 

STATEMENT OF HON. ROBERT F. BENNETT, A U.S. SENATOR 
FROM THE STATE OF UTAH 

Senator Bennett. Thank you, Mr. Chairman. Being the junior 
Senator and not being a member of the Judiciary Committee where 
the senior Senator is the chairman of the Judiciary Committee usu- 
ally means that my activity with respect to the appointing of Fed- 
eral judges is a fairly minimal one. 

I will say that Senator Hatch has been more than solicitous, 
however, of my opinion and he came down to see me early in this 
process to tell me of the various people that were being considered 
for this particular vacancy and to tell me that his recommendation 



341 

would be Dale Kimball. This made it very easy for me to say yes 
without any kind of demur or objection. 

I will not go over the specifics in Dale Kimball's background. 
Senator Hatch has already done that and they are available to the 
committee generally. I will share with you this personal experience. 

I was the CEO of a company that grew very rapidly and finally 
got to the point where, if its investors were to get any of their 
money out, it had to go public. The decision was made that it 
would go public and go directly to the New York Stock Exchange. 
That meant underwriting by two of the Nation's largest investment 
bankers, Merrill Lynch and Smith Barney, and I said to the people 
who were then handling it, I assume this means we are going to 
hire a very expensive law firm in either New York or San Francisco 
or possibly both. 

The folks at Merrill Lynch said, actually, you have one of the fin- 
est law firms in the country dealing with this particular issue in 
Kimball, Parr and we would recommend, as a New York invest- 
ment banker, that the law firm that handles the public offering for 
Franklin be Kimball, Parr. That was the first time I had heard Mr. 
Kimball's name, and as I associated with the people at Kimball, 
Parr, both in that official manner and in the unofficial question of 
how I handle my own shareholdings, I have come to realize how 
wise they were in making that recommendation. 

Mr. Kimball is the founder of that firm and his name is the first 
in the list of named partners. He would be qualified to serve on 
any bench in any jurisdiction and I am happy to add my endorse- 
ment to that of Senator Hatch's, based on that personal experience 
with him and his legal background. 

Senator DeWine. Senator Bennett, thank you very much. 

Let me now turn to the senior Senator from the State of Ohio, 
my colleague, John Glenn. 

STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM 
THE STATE OF OHIO 

Senator Glenn. Thank you very much, Mr. Chairman and mem- 
bers of the committee. It is a pleasure to be here today to introduce 
to the committee two Ohioans who have been nominated by the 
President to serve as Federal district court judges. They are prod- 
ucts of our judicial review commission that advises me on these se- 
lections, as the chairman knows. 

These individuals, Judge James Gwin and Mr. Algenon Marbley, 
are certainly worthy of appointment and I would ask them to come 
up and sit with me up here while I introduce them, if I could. Mr. 
Marbley and Judge Gwin, would you come up, please? Thank you. 

They both have had very distinguished careers, and before I go 
on to scribe some of the qualities in these gentlemen that I believe 
make them well suited to serve on the Federal bench, I want to 
take just a moment to recognize their families who have traveled 
with them here today to share in this proud moment. As I read 
your names, if you would just stand back there, I would appreciate 
it so you could be recognized. 

We have Mr. Marbley's wife, Janet Green Marbley, as well as 
their two sons, Algenon, Jr. and Aaron Marbley. They are both 



45-964 98-12 



342 

here. They are joined by Mr. Marbley's mother, Ann Johnson. We 
thank you for coming in today. 

We also have Judge Gwin's wife, Bonnie Gwin, their two sons, 
John and Michael Gwin, and Judge Gwin's mother, Carol Gwin. 
Thank you all for coming here today. I am not sure who is minding 
the store back home, Mr. Chairman, but they have quite a contin- 
gent in here. 

This committee has a large amount of information on these nomi- 
nees. I will not try and go through it all. I will just sort of summa- 
rize or highlight some of the things I believe make them outstand- 
ing nominees. 

Jim Gwin currently sits as a Stark County Court of Common 
Pleas judge, where he has presided for the last 7 years. Judge 
Gwin has earned a reputation for hard work. Since 1989, he has 
presided over more jury trials than any other general division 
judge in the State of Ohio. Judge Gwin has presided over 440 jury 
trials, including 225 felony trials, 19 of which were murder trials. 
Where the average is 15 jury trials per year, Jim Gwin has aver- 
aged more than 50 jury trials per year, so we would definitely be 
getting a hard worker, Mr. Chairman, when we get Jim Gwin. 

When not hearing cases, Judge Gwin has been active with the 
Ohio Judicial Conference, chairing the court technology subcommit- 
tee and serving as a member of the court reform committee. He has 
also worked in the community on behalf of the Central Stark Coun- 
ty United Way, the Central Stark County Mental Health Center, 
the East Central Ohio Juvenile Diabetes Foundation, and the Can- 
ton Group Home. Judge Gwin has also been a lecturer at the Ohio 
Judicial College. 

In my opinion. Judge Gwin has demonstrated the talent, the in- 
tellectual capacity and commitment to public service to make an 
exceptional addition to the Federal bench in the Northern District 
of Ohio. 

I would also like to introduce to the committee Mr. Algenon 
Marbley, or Monte Marbley, as he is better known. Mr. Marbley is 
a partner in the law firm of Vorys, Sater, Seymour & Pease. He, 
too, is exceptionally well qualified to serve on the Federal bench. 
He has had 18 years of excellent experience as a trial lawyer, both 
in the public sector, for the U.S. Department of Health and Human 
Services, and in the private sector, with Vorys, Sater. Mr. Marbley 
has had substantial trial experience at the Federal and State levels 
in civil and criminal matters, both in jury and nonjury trials. 

Monte Marbley has significant academic experience as an ad- 
junct professor at both the law school and undergraduate levels 
and he has taught trial advocacy to lawyers at the National Insti- 
tute for Trial Advocacy for the past 10 years. 

Like Judge Gwin, Mr. Marbley has also taken the time to play 
an active role in his community. He has worked as a leader in or- 
ganizations assisting disadvantaged youth in the Columbus area. 
He has served as secretary and counsel to the board of directors 
of the Big Brothers and Big Sisters Association of Franklin County. 
He has served for 7 years on the board of directors and 2 years as 
president of the Salesian Boys and Girls Club, which serves eco- 
nomically disadvantaged inner-city youth. He also has served in 
leadership positions for the Franklin County United Way Cam- 



343 

paign and the United Negro College Fund. In 1995, he was honored 
as 1 of the top 10 outstanding young citizens of Columbus, OH. 

Mr. Chairman, I recommend Jim Gwin and Monte Marbley with- 
out any reservation whatsoever and I believe both of them will 
make very, very fine Federal judges. They have the demonstrated 
ability and they have the temperament to be able to dispense jus- 
tice fairly and impartially and I am confident the committee will 
agree with this assessment and I hope to see their very swift con- 
firmation. 

Thank you very much, Mr. Chairman. 

Senator DeWine. Senator Glenn, thank you for that fine state- 
ment. 

Let me turn now to our colleague from the State of New York, 
Senator D'Amato. 

STATEMENT OF HON. ALFONSE M. D'AMATO, A U.S. SENATOR 
FROM THE STATE OF NEW YORK 

Senator D'Amato. Thank you very much, Mr. Chairman. Might 
I ask that as I introduce the nominees, they have an opportunity 
to come forward. 

First, it is my pleasure on behalf of both myself and Senator 
Moynihan, who has submitted an extensive statement, and let me 
just read a little part of it. He said today is a great day for New 
York, and he talks to the honor and privilege it is for him to put 
forth and join with me in support of three of the wonderful nomi- 
nees that will be before this committee. 

I am going to ask Mr. Richard Casey, who is the President's 
nominee for the southern district. This nomination follows the nom- 
ination of Mr. Casey by President Bush. Not very often do we get 
one nominee nominated by two Presidents for the same job, two 
Presidents of different parties. I think that is a testimony to our 
Presidents, their administrations, the Justice Department, and to 
the caliber of the nominee. 

Second, Judge Sotomayor, who comes before the committee for 
the second time. It was less than 5 years ago when the judge was 
nominated for the southern district, a position that she has held 
now for almost 5 years and she is now nominated to one of the 
most important courts in the land, the Courts of Appeals, Second 
Circuit. 

Then Judge Charles Siragusa from Rochester, whose wife went 
to law school, coincidentally, with my son, Christopher. I think she 
helped him get through. [Laughter.] 

By the way, I want you to know that this ^s not a payback, that, 
indeed, I have been privileged to support this nomination. 

Judge Siragusa was brought to the attention of the President by 
Senator Moynihan. Were it not for Senator Moynihan feeling some- 
what under the weather, as he has a heavy, heavy cold, he would 
be here. I ask that his statement be inserted in the record as if 
read. 

Senator DeWine. His statement will be made a part of the per- 
manent record. 

Senator Torricelli. 



344 

Senator TORRICELLI. Mr. Chairman, I had three statements from 
him. Senator D'Amato, do you have all three statements from Sen- 
ator Moynihan? 

Senator D'Amato. Yes; all three of them, and that is why I want- 
ed to characterize his statement as this being a great day for the 
judicial system of this country, but particularly as it relates to 
these three magnificent individuals. 

[The prepared statements of Senator Moynihan follow:] 

Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma- 
tion OF SONIA SOTOMAYOR FOR THE UNITED STATES COURT OF APPEALS FOR THE 

Second Circuit 

It is my great honor today to support Sonia Sotomayor, a most exemplary can- 
didate for the United States Court of Appeals for the Second Circuit. 

In March of 1991, I had the pleasure of recommending Sonia Sotomayor to be a 
U.S. District Court Judge for the Southern District of New York, a position which 
she currently holds. Her career as a District Court Judge has been a distinguished 
one. She has presided over a number of high profile cases, including one which, to 
the delight of baseball fans everywhere, put an end to a bitter strike in 1995. Dur- 
ing the five year tenure, her decisions have been reversed only six times — an out- 
standing record. 

Judge Sotomayor is a former Assistant District Attorney with the New York 
County District Attorney's office and was a partner at the law firm of Pavia & Har- 
court. She has considerable experience in criminal law from her work as a prosecu- 
tor, as well as commercial litigation from her days in private practice. 

Her academic achievements are truly outstanding. She was graduated summa 
cum laude from Princeton University in 1976, where she was elected Phi Beta 
Kappa and was a co-winner of the M. Taylor Pyne Honor Prize, awarded to the 
graduating senior who has most clearly m.anifested excellent scholarship and effec- 
tive support of the best interests of the University. She received her law degree from 
Yale University, where she was an Editor for the Yale Law Journal. 

I believe that Judge Sotomayor's considerable accomplishments merit appoint- 
ment to the United States Court of Appeals for the Second Circuit and I am con- 
fident that, upon confirmation, she will serve with high distinction. 



Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma- 
tion OF Charles J. Siragusa To Be United States District Judge for the 
Western District of New York 

I am pleased to present to the committee New York State Supreme Court Justice 
Charles Joseph Siragusa, nominated to be United States District Judge for the 
Western District of New York. 

Might I note that my judicial screening panel interviewed more than twenty ap- 
plicants to fill the vacancy that resulted when Judge Michael A. Telesca took senior 
status. There were, as one might have expected, many splendid candidates. How- 
ever, Judge Charles J. Siragusa stood out. 

Judge Siragusa has served with great distinction in the Seventh Judicial District. 
He was elected to the State Supreme Court in 1992, following fifteen years as a 
prosecutor with the Monroe County District Attorney's office. In that capacity he 
tried over 100 felonies and was involved in a number of significant criminal cases 
including the prosecution of Arthur J. Shawcross, a serial killer responsible for the 
deaths of eleven women. He received widespread recognition and praise for his work 
on that case. 

A native of Rochester, Judge Siragusa was graduated from LeMoyne College in 
DeWitt, New York in 1969. He received his law degree from Albany Law School 
1969 and has been a member of the New York State Bar since 1977. 

Judge Charles J. Siragusa is a man of great intelligence and unwavering prin- 
ciple. I am confident that, upon confirmation, he will serve with honor and distinc- 
tion. 



345 

Prepared Statement of Senator Daniel Patrick Moynihan on the Confirma- 
tion OF Richard C. Casey as a U.S. District Court Judge for the Southern 
District of New York 

It is my great privilege to support the confirmation of Richard Conway Casey, a 
nominee for United States District Judge for the Southern District of New York. 

Mr. Casey has been associated with the New York firm of Brown & Wood for over 
thirty years, serving as a partner for fourteen years before becoming Of Counsel to 
the firm in 1984. During his time in private practice, he has specialized in securi- 
ties, corporate and criminal litigation. 

Earlier in his career, he served as Assistant United States Attorney for the South- 
em District of New York and investigated public corruption as counsel to a Special 
Commission of the State of New York, commonly known as the Moreland Act Com- 
mission. 

Might I add that Mr. Casey has benefited from the rigors of a Jesuit education. 
He was graduated from the College of the Holy Cross in 1955 and went on to receive 
his law degree at Georgetown University Law center in 1958. At Georgetown he was 
the recipient of the Beaudry Cup for best Moot Court argument in his class. He 
later went on to be a finalist in the National Moot Court Competition. 

It is an honor to introduce Mr. Casey to the Committee today. I am quite con- 
fident that upon his confirmation he will serve New York with distinction. 

Senator D'Amato. Let me say, I am going to ask that my full 
statement be included in the record as if read in its entirety, be- 
cause I have these loquacious speech writers who have gone into 
every detail of all of the candidates and their lives. Some, they 
might want to hear. Others would be — well, no. 

Senator DeWine. It will be made a part of the record. 

Senator D'Amato. Let me say that it is a great privilege and 
honor to nominate Dick Casey. Dick Casey's impressive legal career 
is quite extraordinary. But I think more extraordinary is the fact 
that over the past several years, Mr. Casey's legal work has shifted 
slightly as a result of his blindness. He is blind. He would be the 
first district court judge who would be nominated for this position 
and take the bench as a person who has no sight — who is legally 
blind. 

There is no doubt as to his legal acumen. There is no doubt as 
to the brilliance of his academic record and his distinguished career 
before the bar. Even after he lost his sight, he remained vigorous 
in actively practicing law, probably more than most. His tenacious- 
ness toward justice and fairness will never be impeded by his loss 
of sight. 

We had a distinguished panel of jurists before our committee 
who came forward with this nominee and who explored the ques- 
tion as to whether or not he would be able to discharge the duties 
as a trial justice. This was headed by the former chief justice of the 
southern district. Their recommendation was unanimous in terms 
of indicating that Dick Casey could do the job. 

I believe that not only is he eminently qualified by way of his 
background and his experience, but his success in the face of the 
disability that he has had to deal with will give further testimony, 
living proof, to his great personal strength and it will be an inspi- 
ration to Americans and many others that we are winning the bat- 
tle against the prejudice toward the disabled. As always, he will be 
a trail blazer, opening new doors for others. 

Let me just add, for the record, just some of his credentials. I 
might mention that those who know him best have come forward 
and are here today, not only his family but one of the great U.S. 
attorneys from the Southern District of New York, a great prosecu- 



346 

tor in his own right is here today to lend his support to his friend 
and colleague, former U.S. attorney Otto Obermeyer. 

Mr. Casey's impressive legal career began as an assistant U.S. 
attorney in the Southern District in the Criminal Division. He 
joined the special commission for the State of New York investigat- 
ing public corruption, and for over three decades, he has been prac- 
ticing with Brown and Wood in New York City. So it is my distinct 
pleasure to put forward this nominee. 

As it relates to Justice Sotomayor, what can one say? But only 
in this country, the daughter of a humble working family has risen 
by way of her legal scholastic stewardship to the highest trial court 
in the Federal district, the premiere district, I might add with some 
prejudice, the Southern District of New York, where she has distin- 
guished herself. 

I predicted to this committee almost 5 years ago that Judge 
Sotomayor would be an exemplary, outstanding justice. She has 
demonstrated that repeatedly. She has shown compassion, wisdom, 
one of the great intellects on the court. Her experience both as a 
prosecutor, civil litigator, and Federal trial judge makes her an ex- 
ceptionally qualified candidate for the second circuit. She is here 
with her beautiful mama, and I am wondering if we could have 
your mother stand. Mrs. Sotomayor, congratulations to you. 

Last but not least is Judge Siragusa, and I want you to know 
that the judge comes with one of the most highly rated records as 
a great trial judge, sitting in the Supreme Court in Monroe County, 
having served as first assistant district attorney and thereafter 
being recognized by more groups than one could possibly mention 
in terms of his service to community and in terms of his legal stew- 
ardship. 

Of all of his great accomplishments, I might add, is the fact that 
the judge graduated from a wonderful school, and you know that 
my chief and top administrative assistant put this in. He said, 
after graduating from a wonderful college, LeMoyne College in Syr- 
acuse. So I want you to know, judge, that Mike Kinsella has never 
forgotten that kinship and we share that with this committee 
today. 

I recommend him to this committee, along with Senator Moy- 
nihan, recognizing that the President has chosen well and also that 
this district is one of the busiest districts, most overworked dis- 
tricts, in the country and they certainly could use the judge as 
quickly as possible. 

Mr. Chairman, it is a great honor to recommend these three 
nominees and join with our senior Senator in presenting them to 
the committee today. 

Senator DeWine. Senator D'Amato, thank you very much for 
joining us. 

[The prepared statements of Senator D'Amato follows:] 

Prepared Statement of Senator Alfonse D'Amato Introducing Sonia 

Sotomayor 

I am pleased to join my colleague, Senator Moynihan in the introduction of Judge 
Sonia Sotomayor to the Senate Judiciary Committee. 

Several years ago I introduced Judge Sotomayor to the Judiciary Committee when 
she was nominated to the federal bench in the Southern District of New York. I was 



347 

confident then that she would be a fine addition to the federal bench and, nearly 
5 years later, I remain confident of her abilities and fairness as a federal judge. 

After graduating from Princeton University, Summa Cum Laude, and then earn- 
ing a law degree from Yale, where she served as editor of the Yale Law School Jour- 
nal, Judge Sotomayor worked in the New York County District Attorney's Office. 
She joined the law firm of Pavia & Harcourt and made Partner in 1988. In private 
practice. Judge Sotomayor has had significant experience in general civil litigation 
including real estate, employment, contract, intellectual property law and export 
commodity trading. 

Judge Sotomayor has exercised her civic duties as a Board Member of a number 
of organizations, including the Puerto Rican Legal Defense & Education Fund, the 
New York State Mortgage Agency and the New York City Campaign Finance Board. 

During her term in the Southern District of New York, she received numerous 
honors including the "Distinguished Woman in the Field of Jurisprudence" by the 
Secretary of State of Puerto Rico, "Recognition of Outstanding Achievement and 
Dedication to the Latino Community" by the Latino American Law Student Associa- 
tion of Hofstra University School of Law and an Award for "Outstanding and Dedi- 
cated Service to the People of New York County" by the District Attorney's Office. 
Her "Lifetime Achievement Award" was presented to her by both the National Puer- 
to Rican Coalition and the Hispanic National Bar Association. 

Judge Sotomayor's experience as prosecutor, civil litigator, and federal district 
court judge makes her an exceptionally qualified candidate for the Second Circuit. 
Her extensive knowledge of the law and her experience deciding federal cases pre- 
pares her for the complex legal decisions that must be made by Circuit Court 
judges. 

I thank the Committee for this opportunity to present Judge Sotomayor and urge 
the Committee's swift consideration of her nomination to the Second Circuit. 



Prepared Statement of Senator Alfonse D'Amato Introducing Charles 

Joseph Siragusa 

I am pleased to introduce Mr. Charles Siragusa to the Senate Judiciary Commit- 
tee. As the Committee is aware, the President has nominated Judge Siragusa to the 
position of District Court Judge for the Western District of New York. 

I would like to take a moment to recognize his family members who are present — 
his bride (as of August 30, 1997) Lisa Serio Siragusa and his new parents-in-law, 
Mr. and Mrs. James Serio. (In fact. Judge Siragusa would have been before the 
Committee weeks ago had he been able to get a plane back from his honeymoon.) 

Judge Siragusa is from Rochester, New York and has been a life-long New Yorker. 
After graduating from a wonderful school, LeMoyne College in Syracuse, and work- 
ing for several years as a teacher in a Rochester school. Judge Siragusa entered law 
school, and graduated from Albany Law School. 

Judge Siragusa's impressive legal career began as an Assistant District Attorney 
with the Monroe County District Attorney's Office. He was promoted to First Assist- 
ant District Attorney and was employed in that position for eight of his fifteen years 
of service. Judge Siragusa's work at the prosecutor's office has been recognized by 
many groups, awarding him distinguishing honors including, among others, the 
Gannet Rochester Times Union's Person of the Year (1991), Honorary Deputy Chief 
of the Rochester Police Department (1991), Exemplary Service Award from the Mon- 
roe County Sheriffs Department (1991) and a Distinguished Service Award for his 
contribution to the Italian American Community-Counsel General of Italy (1996). 

Since 1993, Judge Siragusa has served New York State as a State Supreme Court 
Judge in Rochester, deciding cases in a fair and equitable manner. 

This nominee has also served in several community positions, volunteering his 
leadership and knowledge for people in need. He has sat on the Advisory Board for 
Rape Crisis and the Families and Friends of Murdered Children and Victims of Vio- 
lence. 

I thank the Committee for allowing me this opportunity to introduce Judge 
Siragusa and I look forward to swift action on his nomination. 



Prepared Statement of Senator Alfonse D'Amato Introducing Richard 

Conway Casey 

It is an honor for me to introduce Richard Casey to the members of the Senate 
Judiciary Committee — a highly regarded and respected lawyer, and a close personal 
friend, who President Bill Clinton has nominated to the Southern District of New 
York, echoing a prior endorsement by former President George Bush. 



348 

After graduating from the College of Holy Cross, Mr. Casey attended Georgetown 
University Law Center. A sign of his future abilities, he became a finalist in a na- 
tional competition for his moot court team. He served his country in the United 
States Army and served overseas before he was honorably discharged. 

Mr. Casey's impressive legal career began as an Assistant U.S. Attorney with the 
U.S. Attorney's Office, Criminal Division, in the Southern District of New York. He 
joined the Special Commission for the State of New York investigating public cor- 
ruption. 

For over three decades, Mr. Casey has been practicing with Brown & Wood in 
New York City, elected to partner in 1970 and Counsel in 1984, practicing complex 
securities, corporate and criminal litigation. 

Over the past five years, Mr. Casey's legal work has shifted slightly as a result 
of his blindness but there is no doubt he remains vigorously active in the practice 
of law, probably more than most. His tenaciousness toward justice and fairness will 
never be impeded by his loss of sight. 

What some may view as a disability has only strengthened his resolve for equity 
and justice. He served as Director of Guiding Eyes for the Blind, a non-profit school 
for training of guide dogs and the blind and Director of Catholic Guild for the Blind, 
a nonprofit organization dealing in rehabilitation of the blind. 

In addition to his work with these groups, Mr. Casey has shared his incredible 
knowledge of the law, civil and criminal, as the Chairman of the American Bar As- 
sociation Committee on Securities Litigation from 1975 to 1977 and as a member 
of the Southern District of New York Trial and Appellate Panel representing indi- 
gent defendants in criminal trials and appeals for twenty years. 

Mr. Casey was appointed by the Honorable Jack Weinstein to serve on the Special 
Commission on Discovery Abuse, amending local rules, and previously served, at the 
request of Chief Justice Warren Burger, on the Special Committee for Discovery 
Abuse, which issued a report recommending amendments to the Federal Rules of 
Civil Procedure. 

Whether a criminal case or a civil, with a disability or without, Mr. Casey has 
earned the tremendous reputation that has followed him throughout his career. His 
extensive knowledge of the law, thoughtful consideration and his demonstrated lead- 
ership make him an exceptionally well qualified candidate for this position. 

Besides being eminently qualified to serve in this position, his success in the face 
of his disability is further testament of his great personal strength. His appointment 
shows that in America we are winning the battle against prejudice towards the dis- 
abled. As always, he will be a trailblazer, opening new doors for others. 

I strongly support his nomination and urge the Committee's swift consideration. 

Senator DeWine. Let me turn now to my colleague from the 
State of Tennessee, Senator Thompson. 

STATEMENT OF HON. FRED THOMPSON, A U.S. SENATOR 
FROM THE STATE OF TENNESSEE 

Senator Thompson. Thank you, Mr. Chairman. 

Mr. Oilman, would you come forward, please. 

Senator DeWine. I see our colleague from Tennessee, also. Sen- 
ator Frist, is here. 

Senator THOMPSON. Mr. Chairman and fellow members of the 
committee, I am pleased to come here today before you to introduce 
Ronald L. Oilman, the President's nominee to fill a vacancy in the 
U.S. Court of Appeals for the Sixth Circuit. I want to start by ac- 
knowledging my gratitude and the gratitude of all lawyers who 
practice before the sixth circuit to our chairman for scheduling a 
hearing on Mr. Oilman's nomination so promptly. 

Before I summarize Mr. Oilman's accomplishments to the com- 
mittee and explain why I believe he merits the committee's ap- 
proval, I want to say a brief word to recognize Judge Ted Milburn, 
whose seat Mr. Oilman will be filling if he is confirmed. 

Judge Milburn has served the people of Tennessee and the 
United States as a judge for almost a quarter of a century, first as 
a State trial judge and, since 1983, a Federal judge. Judge Milburn 



349 

is widely regarded throughout the sixth circuit as a leader on the 
court. On behalf of all Tennesseeans, I want to thank him for his 
service and wish him well in his retirement. Mr. Oilman has big 
shoes to fill. 

Let me turn now to the nominee before you today. Mr. Oilman 
is a native of Memphis and attended high school at Christian 
Brothers Academy in Memphis, from which he graduated as val- 
edictorian. He left Tennessee for college and law school in Massa- 
chusetts, attending the Massachusetts Institute of Technology and 
Harvard Law School. After graduating cum laude from Harvard in 
1967, Mr. Oilman returned to Memphis, where he has practiced 
ever since in one of Tennessee's leading law firms, Ferris, Mat- 
hews, Oilman, Branan & Hellen. I might point out that the Mat- 
hews in that firm name is former Senator Harlan Mathews. I 
might also point out that my son is a member of that firm. 

Mr. Oilman rapidly became established as a leader of the Mem- 
phis bar, serving as the president of the young lawyers division of 
the Memphis Bar Association and president of the young lawyers 
conference of the Tennessee Bar Association. He subsequently 
served a term as president of both the Memphis Bar Association 
and the Tennessee Bar Association. In recognition of Mr. Oilman's 
leadership at the bar, he was appointed to serve on the Tennessee 
Court of the Judiciary, which hears disciplinary cases against State 
judges. He has also served occasionally as a special judge in the 
State courts in Memphis. 

Mr. Oilman has been a leader not just in the Memphis bar but 
in the Memphis community, as well. He has served on the board 
of directors of the Chickasaw Council for the Boy Scouts of Amer- 
ica, the Memphis Jewish Home, and the Memphis Senior Citizens 
Services, among other groups. In 1981, Mr. Oilman was awarded 
the Sam A. Myar, Jr. Memorial Award for outstanding service to 
the legal profession and the Memphis community. 

Perhaps most interesting of all is Mr. Oilman's membership in 
the Society of Memphis Magicians, which he served as president in 
1986. While this gives me a little concern, I assume he will restrict 
himself to pulling rabbits out of his hat and not judicial decisions. 

Mr. Oilman is an extremely well-qualified and unusually well- 
rounded nominee. While his practice is concentrated on litigation, 
particularly commercial litigation, he also has engaged in estate 
planning and general business law. Not only is he experienced in 
civil law, but in criminal law, as well, as he has represented a 
number of indigent criminal defendants in Federal court. 

More recently, Mr. Oilman's practice has focused on the practice 
of alternative means of dispute resolution, such as arbitration and 
mediation. Mr. Oilman has often served as an arbitrator and medi- 
ator for groups like the American Arbitration Association and the 
National Association of Securities Dealers. With the backlog in civil 
litigation throughout the Nation, I think it is important to recog- 
nize the importance of the nominee's experience in this area. Not 
only is this experience similar to the experience of being a judge, 
but it will no doubt help him bring a special insight to a variety 
of procedural issues to help the civil litigation system work better. 

I know his wife, Betsy, is here today. I know he will want to in- 
troduce her. I want to thank again Chairman Hatch for scheduling 



350 

this hearing and you, Mr. Chairman, for presiding today. I am con- 
fident that after hearing from Mr. Oilman, the committee will fa- 
vorably report his nomination and that the full Senate will confirm 
him promptly. Thank you very much. 

Senator DeWine. Let me turn to the other Senator from the 
State of Tennessee, Senator Frist. I also saw Congressman Ford 
back there. Congressman, can you come on up and join us? 

STATEMENT OF HON. BILL FRIST, A U.S. SENATOR FROM THE 
STATE OF TENNESSEE 

Senator Frist. Thank you, Mr. Chairman. I will join my col- 
league from Tennessee in welcoming the opportunity to introduce 
Mr. Ron Oilman, who has been nominated to fill the vacancy in the 
Sixth Circuit Court of Appeals. The President has chosen wisely in 
his selection of Ron Oilman of Memphis, TN, to fill this vacancy 
and it is an honor for me to be here to speak on his behalf 

I have heard from many Tennesseeans since the nomination from 
across the State, and uniformly and unanimously, they have called 
to express their support, their full support, for this nomination. Mr. 
Oilman will make an outstanding judge and do a tremendous job 
in serving Tennessee, as well as the entire sixth circuit. 

His experience, which has been outlined to you, is diverse and 
impressive. His reputation throughout Tennessee is fair and delib- 
erative, all of which speaks volumes toward his integrity. I am 
proud to support this outstanding nominee, was glad to have the 
opportunity to meet his family earlier today, and look forward to 
completion of this nomination process. 

Senator DeWine. Senator Frist, thank you very much. 

Congressman Ford, welcome. 

STATEMENT OF HON. HAROLD E. FORD, A REPRESENTATIVE 
IN CONGRESS FROM THE STATE OF TENNESSEE 

Mr. Ford. Thank you, and I certainly thank my Senators, Mr. 
Thompson and Mr. Frist, for their leadership on this. I welcome my 
friend and certainly the future sixth circuit jurist, Mr. Oilman, and 
his family. I know his wife Betsy, if she would not mind standing, 
and certainly his daughter. Sherry, who is there in the back. I 
know Laura was not able to be with the soon-to-be jurist today, but 
I am sure she would be proud of her father. 

I thank Chairman Hatch, and certainly, again, my Senators for 
moving this process forward in the way that they were able to and 
did. I would certainly say that Mr. Oilman's nomination, the way 
that this Senate has conducted itself, I believe, is a clear illustra- 
tion of how this process can and should work when partisan politics 
takes a back seat to the pressing needs of our judiciary. 

I thank you again, Mr. Chairman, for scheduling this hearing 
and I congratulate my friend, Mr. Oilman, again. 

Senator DeWine. Congressman, thank you very much. 

I have a statement that Senator Leahy has asked me to place in 
the record. It will be made, without objection, a part of the record 
today. 

[The prepared statement of Senator Leahy and President Clin- 
ton's radio address on judicial nominations follow:] 



351 

Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the State 

OF Vermont 

I commend the Chairman for holding this confirmation hearing for judicial nomi- 
nees this afternoon and, in particular, for including Judge Sonia Sotomayor among 
those being considered. Judge Sotomayor has been an outstanding Federal District 
Court Judge. She was nominated to fill a vacancy on the Second Circuit Court of 
Appeals last June. There are currently four vacancies among tlie 13 judgeships that 
constitute that distinguished court. The Chief Judge of Second Circuit recently testi- 
fied that in light of these vacancies 80 percent of Second Circuit 3-judge panels over 
the next 12 months will have to be filed by visiting judges, since there are simply 
not enough Second Circuit judges to complete them and to hear all the cases that 
need attention. I hope that we will proceed without delay to consider the nomination 
of Judge Sonia Sotomayor to the Second Circuit and move promptly to fill the va- 
cancies plaguing the Second Circuit. 

I note that we are also considering the nomination of Ronald Oilman to the Sixth 
Circuit, which nomination was received in July 16; the District Court nominations 
of Charles Siragusa and Richard Casey to the Western and Southern Districts in 
New York, which nominations were both received in mid-July; the District Court 
nominations of James Gwin and Algenon Marbley to the Northern and Southern 
Districts in Ohio, which nominations were received in late July and the District 
Court nomination of Dale Kimball to the District of Utah, which nomination was 
received on September 5, less than one month ago. I expect that Senator Thompson 
and Senator DeWine are likewise appreciative of the Chairman's willingness to in- 
clude these nominees in this hearing. The confirmation process for the vacancy in 
Utah is likely to set the standard for how promptly this Committee can proceed to 
review and report federal judgeship nominations. We all look forward to Mr. 
Kimball's speedy confirmation. 

Unfortunately, this is only the sixth confirmation hearing for judicial nominees 
that the Committee has convened all year. By this time two years ago, the commit- 
tee had held nine confirmation hearings involving 36 judicial nominees. 

While I am encouraged that the Committee is today proceeding with a hearing 
on these six nominees, there remains no excuse for the Committee's delay in consid- 
ering the nominations of such outstanding individuals as Professor William A. 
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. Margaret 
McKeown, Ms. Ann L. Aiken, and Ms. Susan Oki MoUway, to name just a few of 
the outstanding nominees who have all been pending all year without so much as 
a hearing. Professor Fletcher and Ms. Mollway had both been favorably reported 
last year. Judge Paez and Ms. Aiken had hearings last year but have been passed 
over so far this year. 

After this hearing, which is the first time this year the Committee has been will- 
ing to hold two hearings in any one calendar month, the Committee will still have 
pending before it more than 40 nominees in need of a hearing from among the 69 
nominations sent to the Senate by the President during this Congress. From the 
first day of this session of Congress, this Committee has never had pending before 
it fewer than 20 judicial nominees for hearings. The Committee's backlog has now 
doubled and is more than 40. Many of these nominations were before us last Con- 
gress, during the election year slowdown, and have had to be re-nominated by the 
President. The vacancies for which they are nominated have not been filled but per- 
sist for periods now reaching years. For example, the Committee has 10 nominees 
who have been pending for more than a year, including five who have been pending 
since 1995. Thus, while I am delighted that we are moving more promptly with re- 
spect to the nominees being considered today, I remain concerned about the other 
vacancies and other nominees. 

Some of those pending before the Committee had hearings or were reported favor- 
ably by the Committee last Congress but have been passed over so far this year as 
the vacancies for which they were nominated more than two years ago persist. The 
President has sent us 69 judicial nominations so far this year and is sending more 
each week. Over the last three weeks, apparently in anticipation of the President's 
radio address on the judicial vacancy crisis, the Senate doubled its confirmations 
from 9 to 18 in the course of 23 days. I expect even those who have spent so much 
time this year holding up the confirmations of federal judges were uncomfortable 
defending this Senate's record of having proceeded on only 9 of the 61 nominees re- 
ceived through August of this year. With the two confirmations last Friday, the Sen- 
ate achieved the snail-like pace of confirming two judges a month over the course 
of this year, while still faced with almost 100 vacancies. 

The Senate continues to lag well behind the pace established by Majority Leader 
Dole and Chairman Hatch in the 104th Congress. By this time two years ago, the 



352 

Senate had confinned 36 federal judges, double the number achieved this year. For 
purposes of perspective, let us also recall that by the end of September 1992, during 
the last year of the President Bush's term, a Democratic majority in the Senate had 
confirmed 59 of the 72 nominees sent to us by a Republican President. This Senate 
is on pace to confirm less than one-third of a comparable number of nominations. 

Those who delay or prevent the filling of these vacancies must understand that 
they are delaying or preventing the administration of justice. We can pass all the 
crime bills we want, but you cannot try the cases and incarcerate the guilty if you 
do not have judges. The mounting backlogs of civil and criminal cases in the dozens 
of emergency districts, in particular, are growing taller by the day. National Public 
Radio broadcast a series of reports all lasts week on the judicial crises and quoted 
the Chief Judge and U.S. Attorney from San Diego earlier this week to the effect 
that criminal matters are being affected. 

I have spoken about the crisis being created by the vacancies that are being per- 
petuated on the Federal courts around the country. At the rate that we are going, 
we are not keeping up with attrition. When we adjourned last Congress there were 
64 vacancies on the federal bench. After the confirmation of 18 judges in nine 
months, there has been a net increase of 30 vacancies, an increase of almost 50 per- 
cent in the number of federal judicial vacancies. 

The Chief Justice of the Supreme Court has called the rising number of vacancies 
"the most immediate problem we face in the federal judiciary." Chairman Hatch has 
said that we can do better. I agree with them and add that we must do better. I 
have urged those who have been stalUng the consideration of these fine women and 
men to reconsider their action and work with us to have the Committee and the 
Senate fulfill its constitutional responsibility. 

This weekend the President of the United States devoted his national radio ad- 
dress to the threat being posed to our judicial system by those who are intent on 
partisan and ideological intimidation of federal judges. I ask that a copy of the 
President's Radio Address on Judicial Nominations from September 26, 1997, be in- 
cluded in the record. 



Radio Address of the President to the Nation 

The President: Good morning. I want to talk this morning about a very real 
threat to our judicial system. For more than 220 years our nation has remained 
young and strong by meeting new challenges in ways that renew our oldest values. 
Throughout our history our judiciary has given life and meaning to those values by 
upholding the laws and defending the rights they reflect, without regard for politics 
or political party. 

That is the legacy of the judicial system our founders established, a legacy we re- 
called this Thursday on the 40th anniversary of the court-ordered desegregation of 
Little Rock Central High School. 

But in the past 18 months this vital partnership has broken down as the Senate 
has refused to act on nomination after nomination. And in federal courthouses 
across America, almost 100 judges' benches are empty. In 1996, the Senate con- 
firmed just 17 judges — that's the lowest election-year total in over 40 years. 

This year I've already sent 70 nominations to Congress, but so far they've acted 
on less than 20. The result is a vacancy crisis in our courts that Supreme Court 
Chief Justice William Rehnquist warned could undermine our court's abiUty to fair- 
ly administer justice. 

Meanwhile, our courts are clogged with a rising number of cases. An unprece- 
dented number of civil cases are stalled, affecting the lives of tens of thousands of 
Americans — from the family seeking life insurance proceeds, to the senior citizen 
trying to collect Social Security benefits, to the small business protecting its right 
to compete. In our criminal courts nearly 16,000 cases are caught in limbo, while 
criminals on bail await punishment and victims await justice. Our sitting judges are 
overloaded and overworked, and our justice system is strained to the breaking point. 

The Senate's failure to act on my nominations, or even to give many of my nomi- 
nees a hearing, represents the worst of partisan politics. Under the pretense of pre- 
venting so-called judicial activism, they've taken aim at the very independence our 
founders sought to protect. The congressional leadership has actually threatened sit- 
ting judges with impeachment, merely because it disagrees with their judicial opin- 
ions. Under this politically motivated scrutiny, under ever-mounting caseloads, our 
judges must struggle to enforce the laws Congress passes and to do justice for us 
all. 

We can't let partisan politics shut down our courts and gut our judicial system. 
I've worked hard to avoid that. And the people I've nominated for judgeships and 



353 

had confirmed have had the highest rating of well qualified from the American Bar 
Association of any President since these ratings have been kept. 

So today I call upon the Senate to fulfill its constitutional duty to fill these vacan- 
cies. The intimidation, the delay, the shrill voices must stop so the unbroken legacy 
of our strong, independent judiciary can continue for generations to come. This age 
demands that we work together in bipartisan fashion — and the American people de- 
serve no less, especially when it comes to enforcing their rights, enforcing the law, 
and protecting the Constitution. 

Thanks for hstening. 

Senator DeWine. We will now proceed with our circuit court 
nominees. I would ask our two nominees to come forward. We 
apologize for moving everyone around, but I think that we will pro- 
ceed with two panels, starting with the circuit court nominees. 

As you come up, I will just ask you to remain standing and take 
the oath. Do you swear the testimony you shall give in this hearing 
shall be the truth, the whole truth, and nothing but the truth, so 
help you, God? 

Mr. Oilman. I do. 

Judge SOTOMAYOR. I do. 

Senator DeWine. Thank you both for joining us today. We will 
start with Mr. Oilman. Mr. Oilman, is there anyone in the audi- 
ence who is with you that has not been introduced that you would 
like to introduce? This is sort of a family day here today, which is 
just fine with me. 

TESTIMONY OF RONALD LEE OILMAN, OF TENNESSEE, TO BE 
U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT 

Mr. Oilman. Well, I appreciate it, Mr. Chairman. My wife, I be- 
lieve, has been introduced, and my daughter. Sherry. Also, I have 
my cousins from Chevy Chase, Marian and Leon Blum. 

Senator DeWine. Let us have them all stand up, or maybe they 
are standing up already. 

Mr. Oilman. And I have three friends of my daughter Sherry, 
Rhonda Rivens, Allison Issacman, and Stuart Frisch are all here, 
living in the Washington, DC area. Thank you very much. 

QUESTIONING BY SENATOR DE WINE 

Senator DeWine. Mr. Oilman, all of us have interest in all of the 
nominees. I obviously have a special interest in your nomination, 
because you will be serving in the sixth circuit. The State of Ohio, 
of course, also happens to be part of the sixth circuit. 

I notice in your resume that you have worked as an arbitrator- 
mediator for the American Arbitration Association. I think you also 
worked as a referee in the Dalkon shield litigation. 

Mr. Oilman. Yes, Mr. Chairman. 

Senator DeWine. You have written on this topic. I wonder if you 
could just comment for us as to whether you think our system uses 
mediation enough, both at the Federal level and at the State level. 

Mr. Oilman. My own experience, of course, is in the Tennessee 
courts and it is just coming of age. It was just this year, as a mat- 
ter of fact, that the Tennessee Supreme Court adopted an official 
rule for mediation. The Western District of Tennessee just set up 
its program this year. I believe it is something that has been quite 
helpful. I know the sixth circuit several years ago set up a special 



354 

counsel's office to try to resolve disputes, even when they reached 
the court of appeals. 

It seems to me a way of shortening the process of resolving civil 
cases and the statistics show that about 80 percent of cases that 
are mediated end up being resolved. So I think the parties are bet- 
ter off and the courts are better off because it unclogs the system 
a good bit. 

Senator DeWine. What is your opinion? Are we using this to its 
fullest potential in the Federal system? 

Mr. Oilman. It is not yet, in my own experience in the Western 
District of Tennessee, not being fully — but it is just in the process 
of being utilized. I expect, though, as I have talked to colleagues 
in the States of, for example, Texas and Florida, where it has been 
in existence for approximately 10 years, I understand it has gotten 
to the point in those States where you cannot go to trial until you 
first try mediation, and that is probably the direction that we are 
going in, which, in fact, I think is healthy, as particularly medi- 
ation is not binding and the parties are not obligated to settle, so 
if they have to go to court, they certainly have the opportunity and 
the legal right to do so. But on the other hand, many of these civil 
cases get resolved far earlier and at far less expense to the parties 
than if they had to go through traditional litigation. 

Senator DeWine. Mr. Oilman, during your tenure as president of 
the Tennessee Bar Association, the Association drafted a profes- 
sional creed for Tennessee lawyers. Is there anything particularly 
unique about that professional creed that we should take note of? 

Mr. Oilman. Only that probably the thing that seems most im- 
portant is the need for attorneys to disagree without being dis- 
agreeable. Unfortunately, it seems to be more and more as the pro- 
fession grows where the lawyers do not have regular contact with 
each other on a repeated basis that you find less civility in the 
process and that then reflects on the cost to the litigants and the 
prolonging of the litigation and the need for lawyers to be able to 
cooperate, particularly on procedural matters that do not affect the 
substance of the case, but rather than just schedule a deposition 
date and then have problems, oh, I am going to be out of town, to 
talk to each other first and do things informally, where it does not 
affect the merits but yet it greatly aids in the case being processed 
through the system, and that is sort of the heart of the profes- 
sionalism and the creed standards. 

Senator DeWine. Thank you. 

Senator Thurmond. 

QUESTIONING BY SENATOR THURMOND 

Senator Thurmond. Thank you, Mr. Chairman. Judge 
Sotomayor, a former Supreme Court Justice has expressed his view 
of consitutional interpretation as follows, and I quote, "We look to 
the history of the time of framing of the Constitution and the inter- 
vening history of interpretation, but the ultimate question must be, 
what do the words and the text mean in our time?" Do you agree 
with that statement? 



355 

TESTIMONY OF SONIA SOTOMAYOR, OF NEW YORK, TO BE U.S. 
CIRCUIT JUDGE FOR THE SECOND CIRCUIT 

Judge SOTOMAYOR. No, sir, not fully. I agree with the first two 
parts of it, that you look at the Constitution and what it meant at 
the time. The last suggests that I would be trying to change its 
meaning today, and no. I think the first two would inform what the 
last result should be, which is what did it mean then and how to 
apply new facts to that if the issue is new facts. 

Senator THURMOND. Mr. Oilman. 

Mr. Oilman. Senator, I think that 

Senator Thurmond. Do you want me to repeat that, or do you 
remember it? 

Mr. Oilman. If you would, that would be fine. 

Senator THURMOND. "We look to the history of the time of fram- 
ing of the Constitution and the intervening history of interpreta- 
tion, but the ultimate question must be, what do the words and the 
text mean in our time?" 

Mr. Oilman. I think that we need to look more at the text of the 
Constitution as it was written. The words are important and I 
think that if the Constitution is to have enduring meaning, those 
concepts obviously have to be applied to current circumstances. 
New events arise all the time, but I think the Constitution has got 
to be interpreted within the meaning of its text. 

Senator Thurmond. Now, this question is for both of you. You 
have both had some involvement with the American Bar Associa- 
tion. Do you believe that the ABA should take positions on social 
and public policy issues such as abortion and aid to the homeless? 

Mr. Oilman. I would be glad to answer first. I was actually in 
the House of Delegates for the last 8 years. I am no longer in the 
House. My term ended in August of this year. I believe the ABA 
does a tremendous amount of good in areas like continuing legal 
education and professionalism and providing legal services. My own 
opinion is it should not, though. Senator, be involved in these 
issues that are primarily social and moral on which lawyers have 
no particular expertise, and I, in fact, have voted against those 
kind of resolutions when they have come up before the House. 

Judge Sotomayor. I have only been an inactive member of the 
bar. I joined it largely because of its educational importance. The 
American Bar Association regularly issues studies on the current 
state of the law and analysis of where the law is and what is hap- 
pening in that area and I receive their publications and receive 
them for that purpose. 

I am aware, obviously, as any reader of newspapers, that they 
have taken larger positions on social issues. I believe, like Mr. Oil- 
man, that that perhaps would not be terribly helpful to them gen- 
erally because it undermines their effectiveness on the central 
issues of their mission, which is the education of lawyers. 

Senator Thurmond. This question is for you. It is a sad fact that 
many young people get involved in selling drugs. Based on your ex- 
perience as a judge, why do you believe many young, poor youths 
become drug dealers? 

Judge Sotomayor. Senator, I wish I had the answer. If we had 
the answer, we would have a solution to one of the worst ravages 
on our society, drugs, and I do not. The reason why kids become 



356 

in drugs, as I have learned as a judge, vary enormously. Some, be- 
cause of the lure of easy money, something that perhaps they 
should not be tempted by, but they are. Others, through their own 
self-ignorance about the damage they are doing to society and to 
themselves. I simply do not have one reason I can give you. The 
reasons are myriad and complex. 

Senator Thurmond. Nov^ another question. Do you oppose man- 
datory minimum sentences for drug offenses? 

Judge SOTOMAYOR. No, sir. 

Senator Thurmond. Another question. Some argue that the Fed- 
eral sentencing guidelines do not provide enough flexibility for the 
sentencing judge and some even say they should be abolished. 
What is your view of the Federal sentencing guidelines, based on 
your experience with them? 

Judge SOTOMAYOR. Thus far, sir, in the vast majority of cases, I 
have found the guidelines to be very helpful in giving some comfort 
to me as a judge that I am not arbitrarily imposing sentences 
based on my personal feelings. I believe that congressional senti- 
ment, as reflected in the guidelines, is important because it permits 
me not to impose my personal views but to let the democracy im- 
pose the society's views. 

With respect to your second point. Senator, the guidelines al- 
ready provide mechanisms for departures in appropriate cir- 
cumstances. In my experience, when there are principled and rea- 
soned grounds to depart, the guidelines already permit it. 

Now, there is obviously discussion going on, I am very well 
aware of it, of issues that the Senate is taking up on changes with- 
in the guidelines with respect to some kinds or others or with re- 
spect to some issues or other. I expect, as has happened during the 
last 10 years, that the Sentencing Guideline Commission will con- 
tinue to take up those issues and revisit them when they are ap- 
propriate. 

Senator THURMOND. Thank you both for your presence and your 
testimony. 

Senator DeWine. Senator Sessions. 

QUESTIONING BY SENATOR SESSIONS 

Senator SESSIONS. Mr. Oilman, I think you are correct. We do 
need to look for ways to develop alternatives to litigation and I 
think we can do a better job of settling controversies many times 
without the expense and the trauma of a full-fledged litigation. I 
am impressed that you have tried 37 cases going directly to judg- 
ment. I think that helps you bring something to the circuit that 
would be a kind of experience and understanding of what it is like 
to be in the pit, if I might, so I congratulate you for that. 

I notice that you are an Eagle Scout. I will ask you a legal opin- 
ion. Do you feel that the Washington Zoo appropriately denied the 
Boy Scouts the right to have a court of honor there because the 
Scouts affirmed a belief in a superior being? Do you think that 
would be an appropriate decision for them to make under the Con- 
stitution? 

Mr. Oilman. I do not have any immediate opinion on that. I was 
not familiar with the issue. Senator. 



357 

Senator Sessions. Apparently, that has been somewhat of a con- 
troversy and I think they have backed down now, but originally, 
that was the explanation that I understand they gave. I think 
sometimes we do need to respect differences. We need to respect 
people's religious views and, under the Constitution, the right to 
exercise those views. I do not think they should be discriminated 
against because of that. 

With regard to the Constitution, I think you were pretty clear 
about that. Do you take the view, and would you not agree that the 
Constitution was fundamentally a contract between the people and 
its government. The first three words, "We the People," shows that 
it was a contract with the people and we should be very careful be- 
fore we alter the meaning of a contract which the people ratified. 

Mr. Oilman. I fully agree with that, Senator. 

Senator Sessions. Judge Sotomayor, would you agree that if we 
respect that Constitution, we have to enforce it, the good and bad 
parts? 

Judge Sotomayor. Absolutely, sir. 

Senator Sessions. Even if we do not agree with a part of it? 

Judge Sotomayor. Absolutely. 

Senator Sessions. And we really undermine and weaken that 
Constitution when we try to bend it to make it fit our contem- 
porary feelings of the moment? 

Judge Sotomayor. Sir, I do not believe we should bend the Con- 
stitution under any circumstance. It says what it says. We should 
do honor to it. 

Senator SESSIONS. And when we honor it as it is written, I think 
we strengthen it and make it available to protect us when any 
great threat to our liberty arises. I agree with you on that. 

You mentioned the sentencing guidelines that Senator Thurmond 
asked you about. I did notice that you had, on occasion, stated that 
you disagree with the mandatory minimums. Is that correct? I have 
heard that. 

Judge Sotomayor. Sir, I do not ever remember saying that. 
There may have been situations in which in a particular set of 
facts I was unhappy with the results, but I do not believe that I 
have ever stated that I was unhappy with mandatory minimums 
as a policy question, no, sir. 

Senator SESSIONS. I think you made a good point about the fact 
that, as a judge, it would be easier to sleep at night when you basi- 
cally have a guideline to help you decide what that sentence should 
be rather than having it totally your burden from to 20 years. 
I think, in some ways, it provides more uniformity and would be 
easier on a judge. 

Judge Sotomayor. Unquestionably, sir. 

Senator SESSIONS. Do you find it that way? 

Judge Sotomayor. I have no idea how the judges before me ever 
set a consistent standard by which to sentence individuals. The 
guidelines do provide that framework in a very helpful way. 

Senator SESSIONS. I have been in court when I thought a person 
might get probation and they got 15 years and vice versa. I think 
something is not healthy when you have that much flexibility. 

So I do believe in the guidelines and I think in the long run they 
are helpful, but I do notice in one case that you issued a sentence 



358 

and you were very critical of the guidelines and said, "I hope that 
yours," referring to, I believe, Louis Gomez's case, "will be among 
the many that will convince our new President and Congress to 
change these minimums. The only statement I can make is this is 
one more example of an abomination being committed before our 
sight. You do not deserve this, sir. I am deeply sorry for you and 
your family, but the laws require me to sentence you to the 5-year 
minimum. I have no choice." Would you like to comment on that? 

Judge SOTOMAYOR. Sir, that is a case where the facts and my 
personal feelings would have imposed a different result, but I did 
not. I imposed what the law required. If that is — I am sorry, the 
name of the case is? 

Senator Sessions. I think it was Louis Gomez. 

Judge SOTOMAYOR. Can you tell me how far back that case was, 
sir? 

Senator DeWine. Ninety-three. 

Judge SOTOMAYOR. If I am not mistaken, sir, that was before the 
safety valve provisions that were passed by Congress and I believe, 
and I could be completely mistaken, because it has been a very 
long time and I have had many sentences since, that I may have 
been talking about the mandatory minimums more than the guide- 
lines in a first offense — exactly what Congress later did, which was 
to say, in a first offense situation with someone who is willing to 
cooperate, as that gentleman was but had nothing to give and he 
has no history of violence and none was used, that you could depart 
from the guideline minimums in that regard, or lower them. 

So I may be mistaken, sir, but I do believe that that was the sit- 
uation and that Congress did do what I had earlier stated, which 
was to look at the factual situations and the impact and make 
changes when they are appropriate. 

Senator Sessions. I think the Congress should do that and I do 
not disagree with the judge calling on Congress and suggesting 
that they should consider making any changes in the law. How- 
ever, I do think that a judge, would you not agree, has to be careful 
in conducting themselves in a way that reflects respect for the law 
and the system? 

Judge SOTOMAYOR. Absolutely, but 

Senator Sessions. A second guess about- 



Judge SOTOMAYOR. Maybe I would not have called it an abomina- 
tion, but I was thinking more of the factual outcome in that case. 
But no question that all I meant in the context of that case was 
the facts of that particular case, which Congress did come very 
shortly thereafter to change. So, obviously, my strong feelings were 
reflected sufficiently that Congress — not because of me, obviously, 
I doubt they knew who I was at the time and may not all know 
who I am now — but it was because of the hardships that were cre- 
ated in many situations that caused the safety valve provision to 
be passed. 

I do agree, however, that great respect both for the law and for 
the process is terribly important, and as I underscored there, I do 
what the law requires and I think that is the greatest respect I 
could show for it. 

Senator SESSIONS. It is important to follow the law, though, in 
cases like this, had you not, it would have been reversed. But I 



359 

think that perhaps had you expressed your criticism with the skill 
you have done today, it might be a little better conduct for a judge. 
I just think that, as you know, when you set a standard of guide- 
lines, everybody is not going to fit perfectly within it and maybe 
you have a responsibility to help that defendant to understand 
that, though it may be unfortunate and you personally would not 
have given as much, that there is a rationale to this law. 

Judge SOTOMAYOR. I have done that on numerous occasions. Sen- 
ator, and there, it was very shortly at the time that I took the 
bench and I believe that since then, I have always been very care- 
ful, and I say it repeatedly at sentencing. When I am faced with 
emotionally difficult situations for defendants and their families, 
often, I get a lot of letters from heartbroken family members and 
at sentencing, I explain to them that as much as I understand their 
pain, that I have a greater obligation to society to follow the law 
in the way that it is set forth. 

Senator Sessions. One more thing. I noticed a New York Times 
article that indicated that you had not applauded or not stood and 
applauded when Justice Thomas appeared at the second circuit 
conference. Are you aware of that? 

Judge SoTOMAYOR. Well, I never did say that, sir. I took the fifth 
amendment when the New York Times asked me that because of 
the raging controversy at the time. I thought it made no sense for 
a prospective nominee to enter that kind of political fray by any 
statement, but I do not think I ever did, sir. 

Senator Sessions. Well, that might explain it. The question in 
the article was, when Justice Clarence Thomas was introduced at 
the second circuit conference, the question of the reporter was, 
were you among those who sat on her hands rather than giving 
him a standing ovation, and you said, "I will take the Fifth." 

Judge SOTOMAYOR. I explained to her clearly, as I do to you now, 
I did that because I thought as a — at that point, I was a confirmed 
nominee, and as a judge, that I should never be making political 
statements to the press or anyone else and I thought that was a 
politically charged question. 

Senator SESSIONS. Let me just ask you, did you see fit to stand 
and applaud when he 

Judge SOTOMAYOR. He was my Supreme Court Justice of my cir- 
cuit. I stood up. 

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

Senator DeWine. Senator Ashcroft. 

QUESTIONING BY SENATOR ASHCROFT 

Senator AsHCROFT. Thank you, Mr. Chairman. I appreciate the 
opportunity. 

Mr. Oilman, I was interested in Senator Sessions' question about 
the Boy Scouts, who for a time were deprived of an opportunity to 
conduct a ceremony at the zoo because their organization espoused 
a belief in a supreme being. I was more interested in your re- 
sponse. You seemed to express some uncertainty about whether or 
not that should be a disabling characteristic of an organization. Do 
you think that organizations or groups of people that express a be- 
lief in a supreme being should be subject to differential access to 
public facilities or should have fewer rights than others? 



360 

Mr. Oilman. Oh, absolutely not. No. I think I just expressed that 
I was not familiar with that situation, Senator. No. I certainly 
would be — frankly, sounded shock that that would be a basis for 
denying the Boy Scouts of America access to a public facility. 

Senator Ashcroft. I would hope that that would be the way you 
would approach the first amendment. Thank you for clarifying 
that. It was not something I knew anything about, but I have come 
to trust my colleague from Alabama. 

Senator SESSIONS. I am relying on Eagle Scout Mike Enzi, who 
examined that recently. 

Senator AsHCROFT. Judge Sotomayor, at one time, you were 
asked to rule on a case of a prisoner who was removed from his 
food service job in prison because he was an open homosexual. The 
plaintiff sued under the 1983 provisions, arguing that prison offi- 
cials violated his constitutional rights by transferring him from the 
food service job. Prison officials argue that he was reassigned from 
his food service job to prevent disciplinary problems that could 
arise from having open homosexuals prepare food. 

You denied the motion for summary judgment on procedural 
grounds, but you wrote that a person's sexual orientation, standing 
alone, does not reasonably, rationally, or self-evidently implicate 
mess hall security concerns. You ruled that prison officials did not 
present evidence that having homosexuals prepare food was a real 
threat. 

I wonder, as a Federal judge, how much difference 

Judge Sotomayor. Sir, may I just interrupt one moment, and I 
apologize greatly. It was not a motion for summary judgment, it 
was a motion to dismiss, which has a different standard. So I am 
somewhat surprised when you say that I criticized them for not 
producing evidence, because on a motion to dismiss, they do not 
produce evidence. I have to take the prisoner's allegations on their 
face. And I am sorry. I did not know if that affected the premise 
of your question. 

Senator AsHCROFT. I am going to find out here in a minute. I 
guess what I really want to know is, what level of deference does 
a Federal judge owe to prison officials when trying to figure out 
what security risks there are in a prison? 

Judge Sotomayor. Enormous. It is a rational basis, which means 
any government interest, as long as there is a reasoned, rational 
basis for it and it is not arbitrary and capricious, the prison offi- 
cials can do what they like. 

In that particular case, sir, as I said, it was a motion under 
12(b)(6)— I believe it is 12(b)(6). It could have been 12(b) (6) or (5). 
But under either, you take the plaintiff, in this case, the prisoner's 
facts as stated. You do not in any way pay attention to what the 
defendants are saying. You take just the pleadings, and the plead- 
ings in that case alleged that there was — the plaintiff claimed that 
there were no security threats against overt homosexuals whatso- 
ever, that he was not aware of any threats, none had been directed 
in prison. 

The reason I know this case so well. Senator, is I just tried it 
last week and it turned out the jury found in favor of the prison 
guards because there was one fact there that was slightly different. 
The prison claimed that it never removed him from the food line. 



361 

That was a factual dispute between them. They say that they 
asked him to leave and that he consented to leave because of the 
threats that had been made. And, in fact, the jury credited the 
prison guards on that claim and held for the defendants. 

Senator ASHCROFT. You say you just tried this case last week? 

Judge SOTOMAYOR. Yes. 

Senator AsHCROFT. Is this on a second appearance before you, 
then? Is this the Holmes v. Artuse? 

Judge SOTOMAYOR. Holmes v. Artuse. 

Senator ASHCROFT. I had that as a 1995 case. Am I mistaken? 

Judge SOTOMAYOR. It was. What happened, sir, in that case, is 
if you notice my — because it was a motion to dismiss, I had invited 
pro bono counsel to take on the case. They came on it later, I do 
not remember exactly when, and we just got it to trial last week. 

Senator ASHCROFT. What was the outcome of the case? 

Judge SOTOMAYOR. As I said, the jury found for the defendants 
on the initial question, which is that the prison had not removed 
him without his consent, that he had, in fact, consented to the re- 
moval. But those are issues of fact that a judge cannot decide on 
paper, sir. Those are factual questions always for a jury. Did X or 
Y happen? 

Senator ASHCROFT. I think those are evidentiary questions. 

Judge SOTOMAYOR. Exactly. Exactly. 

Senator Ashcroft. I guess it is possible that a judge can decide 
evidentiary questions in the absence of a jury, though. 

Judge SOTOMAYOR. Well, in some circumstances. 

Senator ASHCROFT. Do you believe that there is a constitutional 
right to homosexual conduct by prisoners? 

Judge SOTOMAYOR. No, sir; there is not. The case law is very 
clear about that. The only constitutional right that homosexuals 
have is the same constitutional right every citizen of the United 
States has, which is not to have government action taken against 
them arbitrarily and capriciously. The Supreme Court said that 
last term in Evans v. Romer. But outside of that, that is a basic 
constitutional right, not to them in particular, but to the world that 
constitutes the United States. 

Senator ASHCROFT. Do you think there should be one, a special 
constitutional right? 

Judge SOTOMAYOR. I do not think that we should be making con- 
stitutional rights any greater than they exist right now. The Con- 
stitution should be amended sparingly, sir, as it has been through- 
out our history. It is something that should be done only after 
much history and much thought. 

Senator AsHCROFT. Do you agree with the amendments that have 
been made to date? 

Judge SOTOMAYOR. Yes, sir. It is a document that I live by. 

Senator ASHCROFT. I agree with them and I think it was good 
that they were amended, so I accept the process. So in your judg- 
ment, you would not read additional rights into the Constitution, 
like a right for homosexual conduct on the part of a prisoner? 

Judge SOTOMAYOR. I cannot do it, sir. I cannot do it because it 
is so contrary to what I am as a lawyer and as a judge. The Con- 
stitution is what it is. We cannot read rights into them. They have 
been created for us. 



362 

Senator ASHCROFT. Are there any rights that are not protected 
by the Constitution that, as a matter of poHcy, you would hke to 
see protected? 

Judge SOTOMAYOR. I have not thought about that in a while, sir. 
No. 

Senator ASHCROFT. My time is not up. 

Judge SOTOMAYOR. I think I answered. 

Senator Ashcroft. In your opinion, do you think Congress has 
the right constitutionally to restrict the jurisdiction of lower Fed- 
eral courts? 

Judge SOTOMAYOR. You know, I have not examined that question 
in the longest time, but I cannot — I am not thinking — we were cre- 
ated by legislation of Congress, so I would think that if Congress 
created it. Congress can take it away. What you cannot do is take 
away that which the Constitution would give the courts. I think 
that was established in Marbury v. Madison. But absent that, not 
looking at the question or studying it in depth, I cannot give a bet- 
ter answer than that. 

Senator ASHCROFT. I thank you, Chairman DeWine. Thank you. 

Senator DeWine. Judge, one of the great burdens of being a Fed- 
eral district court judge must be to deal with prisons. I have a little 
familiarity with that. When I was Lieutenant Governor in Ohio, 
one of my jobs was to oversee our prison system — so I have a great 
deal of sympathy with judges who have to deal with the litigation, 
and there is a tremendous amount of litigation. 

I say that and preface it by way of an apology because I am going 
to turn to one more prison question, if I could. I do not have a 
name for this case, but I suspect you will recall it. The date I have 
is 1994 and the issue was multicolored necklaces under the cloth- 
ing of prisoners. Do you remember the 

Judge SOTOMAYOR. Yes, I do. 

Senator DeWine. So you remember the name of the case? 

Judge SOTOMAYOR. It is my Campos case. It is better known as 
the Santorea beads case, or at least colloquially known that way, 
I should say. 

Senator DeWine. My understanding is that there was a dispute 
involving the wearing of these beads. Again, I am going to summa- 
rize and you can correct me and then tell me a little bit about the 
case. What I am trying to get at is how you reason as a judge. 

My understanding is that prison officials argued that the beads 
were gang symbols that provoked fights. Contrary to that, I assume 
the argument is the religious freedom question. Do you want to 
walk through for me how you balance that, and ultimately, do we 
get back to what we were just talking about a minute ago, a factual 
question? 

Judge SOTOMAYOR. In that case, sir, yes, prison officials had 
taken the position that the wearing of beads of colors were a sym- 
bol of gang membership. The prisoners, in turn, had asked the pris- 
on officials to permit them to wear the beads under their shirts as 
opposed to visibly. So the question for me was, was it rational for 
the Government not to permit that alternative when I was bal- 
ancing a religious right against a security concern. 

The Supreme Court in these cases has held that you must give 
heightened deference to prison security concerns and other con- 



363 

cerns but that prisoners do not lose fundamental rights, like reli- 
gion, in prison, and so that unlike the standard rational basis re- 
view that is given — this is before the Religious Restoration Act, 
Senator, it is not a part of the jurisprudence tied to that 

Senator DeWine. I understand. 

Judge SOTOMAYOR. The Court has said that it is a slightly dif- 
ferent review in that context, that the context there is that you 
must balance as a judge the security concerns with readily acces- 
sible alternatives. There is no bright line rule, but there, unlike the 
traditional rational basis test where you take as a presumption 
that the Government is doing what it thinks is right, that is a jury 
or a factfinder, you must weigh whether there are reasonable alter- 
natives that could be just as effective. 

My reasoning in that particular case, as the opinion stated, was 
that, in essence, hiding the beads was a reasonable alternative be- 
cause it could not show. I do not know if in the opinion, but I know 
when I spoke to the prison officers later, I said to them, if it turns 
out that they are finding ways to evade that, then, obviously, you 
can take steps that are different. But until that was tried first, be- 
cause it was a reasonable, inexpensive alternative and not terribly 
costly, that I felt that that was consistent with Supreme Court 
precedent on this area. 

Senator DeWine. I appreciate your explanation. Let me move to 
one final case, the 1993 Gonzalez case. Let me quote you in that 
case. "We understand that you," referring to the defendant, "were 
in part a victim of the economic necessities of our society, but un- 
fortunately, there are laws that I must impose." Do you recall that 
case at all? 

Judge SOTOMAYOR. Not much, sir. 

Senator DeWine. I understand that, because we sit up here and 
we can look at all your cases and you have to try on the spot to 
remember a case that may have occurred, in this case, 4 or 5 years 
ago, so 

Judge SOTOMAYOR. I have had two or three Gonzalez cases, and 
I cannot, meaning not the same defendant, but different ones 

Senator DeWine. Let me give you the additional facts, and if it 
refreshes your memory, fine, and you can tell me about it. If it does 
not, we will just move on. 

My understanding is that Gonzalez had been convicted of con- 
structively possessing at least 600 grams of cocaine. He exercised 
dominion and control of an apartment in which the cocaine was 
found. He also stated he knew someone else was supposed to pick 
up the cocaine to sell it and distribute it to others. Do you recall 
anything about that? 

Judge SOTOMAYOR. No. 

Senator DeWine. OK. That is fine. 

Judge SOTOMAYOR. I am terribly embarrassed to say that that 
fact situation is also extraordinarily common 

Senator DeWine. And I can understand that. I appreciate it. 
Thank you. 

Any other questions from any members of the committee? Sen- 
ator Sessions? 

Senator SESSIONS. I would like to ask 

Judge SOTOMAYOR. If you would like to — I am sorry. Senator. 



364 

Senator DeWine. No, go right ahead, Judge. 

Judge SOTOMAYOR. If you have a question generally about some- 
thing I might have said, perhaps I 

Senator DeWine. I think it is difficult, frankly, if you do not re- 
call. I think it would be unfair to you to ask you an3rthing further 
about that, if you do not recall it. 

Judge SOTOMAYOR. Thank you, sir. 

Senator DeWine. Senator Sessions. 

Senator SESSIONS. You mentioned that you appointed pro bono 
counsel in this prison case? 

Judge SOTOMAYOR. We do not appoint them, sir. There are no 
funds to appoint counsel in civil cases, as you may know. What we 
do is put the case on a pro bono list, which is made up of volunteer 
lawyers, and the volunteer lawyers decide whether they want to 
take the case or not. So if I used the word "appoint" the lawyer 
there, what it means, in essence, is putting them on the list so that 
they are eligible to get a lawyer from that volunteer list if a lawyer 
chooses to take the case. 

Senator Sessions. Those turn out to be often very expensive 
processes. Sometimes it is easy for a judge to call in a lawyer and 
then charge him to take a case — I am not saying you did, but I 
have seen that befo'*e — but the State has the expense of going 
through this whole process, which went on from 1995 until, I guess, 
just last week. A lot of expense goes into that. I think we have got 
to learn to do a better job. 

Judge SOTOMAYOR. Senator, if I may add, I put people on a pro 
bono list very, very rarely. I am on the pro se committee of our 
court. I do it only when, generally, after some discovery has hap- 
pened so I can take a look at what is there and determine whether 
there is some substance to the claim, and not initially in all cases, 
and where there may be a complex legal question. 

For example, in that case and a few others, in that Holmes v. 
Artuse, where I did that, the Supreme Court was just considering 
an equal protection claim that I mentioned might elucidate this 
area. In a case like that, where there is an unsettled legal question, 
and you can define that by something where the circuits are split 
or the Supreme Court is hearing an issue, then I will usually ask 
for a lawyer because then the questions are so complex that one 
needs some help in terms of making sure that you have thought 
of all the arguments. You want the lawyers and not a pro se pris- 
oner to brief them. 

Senator Sessions. Thank you. 

Senator DeWine. I want to thank both of you very much and 
thank you for your patience. I would just again state that there 
may be questions from members of the committee who were not 
here today. They will be submitted to you in writing. On the other 
hand, there may not be any written followup questions. 

Also, I would invite you, if you want to elaborate on any answer 
and want to submit an5rthing in writing to us, the committee would 
be more than happy to receive that. 

Judge SOTOMAYOR. Senator, may I take just half a second just 
to introduce my mother again and my fiance? 

Senator DeWine. I think that is very appropriate. 



365 

Judge SoTOMAYOR. My mother, Celina Sotomayor, is here, and 
my fiance, Peter White, and respecting your time, I will not intro- 
duce individually all of the wonderful supportive friends I have 
here, other than my godson, who is a Boy Scout. 

Senator DeWine. Let us have the godson stand up, then. 

Judge Sotomayor. Tommy John Butler. He is the back standing 
up. 

Senator DeWine. He is standing up anyway. Thank you very 
much. 

Mr. Oilman. Thank you. Senator. 

Judge Sotomayor. Thank you. 

Senator DeWine. Thank you very much. 

Let me just make kind of a personal comment. As the father of 
eight kids, I have rarely seen children so quiet. We have a room 
full of children here and I congratulate all of you for staying with 
us. 

I would ask our next panel to come up. We are going to take 
about a 4- or 5-minute break, then ask you to come forward. We 
are going to start this at 15 after, so we will give you a couple-min- 
utes break. After the break, we are going to plow right on through. 
Thank you very much. 

[Recess.] 

Senator DeWine. Let me thank all of you for coming today and 
thank you also for your patience. 

Let me just start from my left with you, Judge Siragusa. Judge, 
is there anyone in the room you want to introduce? We are going 
to go right down and do that to begin with because I do not want 
you leaving here and getting home and realizing there is someone 
who has not been introduced. 

Judge Siragusa. Mr. Chairman, at the risk of correcting a U.S. 
Senator, it was my wife, Lisa, who attended law school with Sen- 
ator D'Amato's son, although I am sure of two things, that she is 
very flattered by his comment and she will never let me forget it. 
[Laughter.] 

Judge Siragusa. My wife, Lisa, is here, and my in-laws, James 
and Lucille Serio, and I thank them for coming. Thank you. 

Senator DeWine. Thank you very much. 

Mr. Marbley. 

Mr. Marbley. Yes, Senator. I have been fortunate. I have had 
some very good support throughout this process and I have some 
law school classmates who were with me back in the old days at 
Northwestern who came and I would like to have them acknowl- 
edged for the record, if I may. One is Thomas Preston, who is with 
the IRS, and then another friend of mine, Antoinette Cook Bush 
was here. I do not know whether she left. She was a former staffer 
and now partner at Skadin Arps. Then I have Ronald Sullivan, 
who was like an understudy but he is a Harvard lawyer now, so 
I cannot call him that anymore, and he is a Washington attorney 
now, so thank you very much. 

Senator DeWine. Very good. 

Mr. Kimball. 

Mr. Kimball. Thank you. Senator. I am grateful to have my wife, 
Rachel, here. She is a nurse and I hope I do not need her medical 
services during the hearing. Our six children and 16 grandchildren 



366 

are scattered across the country taking care of each other and 
working. 

Senator DeWine. Judge Gwin. 

Judge GwiN. I am pleased to have my wife, Bonnie, and my sons, 
Michael and John here. I would also introduce my sister, Mary Jo 
Weis, and her husband, Ted Weis, and their sons, Robert and Ed- 
ward, and also my mother, Carol. I have also some special friends 
who have been helpful to me and these include John Lewis of the 
Squires, Sanders firm and John Heider, who is the executive vice 
president of B.F. Goodrich, and John Manos had been here, Judge 
John Manos, but he may have stepped out. I thank them for their 
help during this process. 

Senator DeWine. Thank you. 

Mr. Casey. 

Mr. Casey. Mr. Chairman, I would like to introduce, I have my 
sister here, Mrs. Carol Brunell. Unfortunately, my son, Richard Jr., 
was unable to be here today, but I do have v;ith me my nephew, 
Christopher Brunell, and his daughter, Kelly, and my nephews, 
Frank Casey, and Tom Casey. 

Senator DeWine. Great. 

Mr. Casey. I also have with me. Senator, some of my very dear- 
est friends who have been so supportive to me from years back and 
since I lost my eyesight. With me here today is Mr. Richard McCar- 
thy, Mr. Otto Obermeyer, who the Senator identified as a former 
U.S. attorney. Another friend was supposed to be here, Suzanne 
Brown, and she, unfortunately, could not make it. But I also have 
with us today several members of the National Federation of the 
Blind and some other blind organizations. I am not sure all have 
arrived, but I am very grateful for their support. Thank you, Sen- 
ator. 

QUESTIONING BY SENATOR DE WINE 

Senator DeWine. Very good. Thank you all very much. 

One of the privileges of having this gavel is you get to ask what- 
ever questions you want 

Mr. Casey. Excuse me. Senator. I am sorry. It would be remiss 
and I could not go home. I have two of my partners here, Mr. 
Thomas Suther and Mr. Robert Petersak and life would not be too 
good when I got home if I did not mention them. 

Senator DeWine. I appreciate that. I have had law partners my- 
self. 

Mr. Casey. Thanks so very much. 

Senator DeWine. I appreciate that very much. 

Let me just say to the nominees that the questions that we ask 
are, frankly, difficult to frame because most of us who sit here and 
who have the obligation to confirm or not confirm Presidential ap- 
pointments have some very definite ideas about what we think a 
judge should be. Those of us who have appeared before judges, es- 
pecially have our ideas. But it is difficult sometimes to phrase 
questions that can get at what we are really looking for. 

Let me just be very candid with you and then I am going to 
start, Judge, with you, if I could, and we will just go from my left 
all the way down. We often talk about judicial temperament. I do 



367 

not particularly like the term because I do not even know what it 
means, but I think we generally know what we are talking about. 

One of the things that I am always concerned about and, frankly, 
it is difficult asking somebody this question and getting an answer 
that is going to tell you a whole lot — maybe I am just stating it so 
that 2 years from now or 10 years from now, at some point, maybe 
you will remember what some U.S. Senator said during the con- 
firmation hearing. 

One of the things that troubles me is that occasionally when 
someone is either elected to the bench — but, frankly, maybe more 
often when they are appointed to the bench and they have life ten- 
ure — they become what I would call arrogant. They become out of 
touch with the community. They fall out of touch with the people 
whom they have dealt with before. I would just like for you to talk 
a little bit in turn about any kind of judicial temperament. 

Before I get into the substantive questions, let me ask you now 
to stand and we will actually swear you in, which is the normal 
procedure of the committee. Do you swear the testimony you shall 
give in this hearing shall be the truth, the whole truth, and noth- 
ing but the truth, so help you God? 

Judge SiRAGUSA. I do. 

Mr. Marbley. I do. 

Mr. Kimball. I do. 

Judge GwiN. I do. 

Mr. Casey. I do. 

Senator DeWine. Thank you. Judge. 

TESTIMONY OF CHARLES J. SIRAGUSA, OF NEW YORK, TO BE 
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW 
YORK 

Judge SiRAGUSA. Mr. Chairman, I think there are three basic 
qualities that go into a good judicial temperament. The first is com- 
mitment. I think that you have to be committed to be the very best 
judge you can be. That involves a commitment to work hard, a 
commitment to dem.and no more of the attorneys who appear in 
front of you than you demand of yourself. It involves a commitment 
to — a judgeship is not just a profession but really a way of life to 
excel as best you can. 

I think the next broad trait would be dedication. You have to be 
dedicated to the oath that you take. I have been a trial judge and 
you have to understand that the responsibility of a trial judge is 
to resolve the cases and controversies that come in front of you and 
not to think of yourself as a talisman to solve the social ills that 
plague society. 

The third, I think, is humility. I think you have to have an ap- 
preciation that it is the position that is important and not the indi- 
vidual. I have tried a lot of cases as a litigant. I have had inter- 
action with a lot of judges following my election and I think there 
is a danger that sometimes people get what I refer to as robe-itis, 
that because you put on the robes, it does not make you a better 
person and it is well to remember, and perhaps it is most impor- 
tant that it is the position that is important and not the individual. 
Thank you. 



368 

Senator DeWine. Certainly none of us have ever known anybody 
in that position. 
Mr. Marbley. 

TESTIMONY OF ALGENON L. MARBLEY, OF OHIO, TO BE U.S. 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO 

Mr. Marbley. Certainly, one of the advantages of going second, 
Mr. Chairman, is that you can adopt 

Senator DeWine. Mr. Casey is given the last shot at this thing. 
Now, he does not know we are going to start with him first next 
time. [Laughter.] 

Mr. Marbley [continuing]. The testimony of Judge Siragusa, but 
I think that one of the key traits that a judge has to have is a com- 
mitment to fairness. I think that a judge has to be fair to the liti- 
gants who appear before him or her. I think that another key con- 
sideration is the quality of being courteous. You have to be cour- 
teous to the litigants, and I think that that will permeate your 
courtroom. Once you establish that you are going to be courteous 
and that civility will carry the day, the litigants who appear before 
you will understand that they are to conform their behavior accord- 
ingly, so we will not have the problem of noncivility in an other- 
wise charged adversarial relationship. 

I think that humility is perhaps one of the most single important 
qualities because you have to realize that you have within your 
hands often the ability to affect the course of events or alter peo- 
ple's lives, and so you have to be humble with that type of respon- 
sibility. 

Finally, I think you have to be thoughtful. When someone has 
posed the faith in you to allow you to sit in that position and to 
be a neutral arbiter of cases and controversies, the least that you 
could do is to be thoughtful in your deliberations. 

I think all of those qualities, in addition to the qualities that 
Judge Siragusa pointed out, make for a sound judicial tempera- 
ment. 

Senator DeWine. Mr. Kimball. 

TESTIMONY OF DALE A. KIMBALL, OF UTAH, TO BE U.S. 
DISTRICT JUDGE FOR THE DISTRICT OF UTAH 

Mr. Kimball. Thank you. Senator. I certainly agree with what 
these two gentlemen have said. A judge must be fair, a judge must 
be impartial, a judge must be patient, a judge must be well-pre- 
pared and informed and render timely and thoughtful and well-ex- 
plained decisions. 

I believe the best example of judicial temperament I know is the 
judge I hope to replace, Judge David Winter. One of the reasons 
he is such a great judge is because he has always remembered, as 
he says, what it is like on the other side of the bench, on the law- 
yers' and the participants', the parties' side of the bench, and I 
would hope to be as he is. Thank you. 

Senator DeWine. Judge. 



369 

TESTIMONY OF JAMES S. GWIN, OF OHIO, TO BE U.S. DISTRICT 
JUDGE FOR THE NORTHERN DISTRICT OF OHIO 

Judge GwiN. Thank you. I think I would adopt just by reference 
the comments made eariier, but I have also been impressed — it is 
so important for judges and people in the judicial system to under- 
stand that for most litigants, they come before a court one time in 
their life, perhaps two or three times, and if those people have gone 
away from the court believing that their concerns, their claims, 
their defenses have been given just short shrift, I think that they 
walk away with a diminished respect for our legal system. 

So I think it is extremely important in every case that all the 
participants, but especially the judge, give a concern for that and 
treat people with respect and treat people with an open mind. So 
those would be the qualities I would hope to bring to the bench for 
the Northern District of Ohio. 

Senator DeWine. Mr. Casey. 

TESTIMONY OF RICHARD CONWAY CASEY, OF NEW YORK, TO 
BE U.S. DISTRICT JXn)GE FOR THE SOUTHERN DISTRICT OF 
NEW YORK 

Mr. Casey. Senator, I love the profession of the law and I have 
the greatest admiration for and affection for the Southern District 
of New York. It is where I started and I am going to be fortunate 
enough, if I am confirmed, to be with several colleagues that I 
started out with. 

But I think what has made me love being a trial lawyer is the 
wonderful experiences before some great judges in that district. 
There is nothing quite as pleasurable for a trial lawyer to try a 
case before an intelligent judge who has compassion and under- 
standing, at the same time understands his function and moves the 
administration of justice along, but just as important, one who has 
a sense of humor that we all need in life and I would hope to emu- 
late some of those that I have had the pleasure of appearing before 
over the years. 

Senator DeWine. Thank you very much. 

Let me turn to my second question. Mr. Casey, I will start with 
you, if that is all right. If each one of you is confirmed, you will 
be taking over a specific court with a docket and I would ask you 
to maybe reflect — ^you have to have given it some thought — about 
some of the things you want to do. What I am looking for is not 
substance in the sense of how you decide cases, but I am looking 
at more procedure — how you would run the court, what you have 
observed in Federal courts or in other courts that work, what does 
not work, what you like, what you do not like, how you would real- 
ly run your court, because one of the things that litigants want is 
a disposition of their case. They want the case resolved. So the 
speed at which cases can be brought to trial, or can be resolved in 
some way, is important. 

So if you could just maybe comment on that, maybe reflect on the 
use of support staff, reflect on the use of law clerks, reflect on the 
use of arbitration or whatever the local rule might allow. That is 
the type of response that I am looking for. What have you thought 
about that? What is important to you, or what is not important? 



370 

Mr. Casey. Well, Senator, I think one thing, at least in the 
course of my experience, I have spent a substantial amount of time 
in private practice, at least, involved in major securities litigation 
and I would think that a major step to handle the administration 
of the court, if I were to be confirmed, is to get involved early, espe- 
cially in large cases, to get a handle on what the issues of the case 
are before things can get out of hand in order that you can move 
them along. 

I have served on committees involving discovery abuse and I 
think much of that can be prevented if a judge is to get in early, 
get his or her hands on the case, assist the lawyers in setting the 
discovery schedule, and move the case along and always, of course, 
with a mind that an early trial date frequently helps things to 
move along, as well. 

As far as the staff, certainly, it is a team effort with the law 
clerks and everyone involved. I would certainly keep a keen eye to 
things that various judges I know in the Southern District have ex- 
perimented with as to how they move their dockets along and I 
would certainly try to inquire of them and utilize all their experi- 
ence, as well. 

Senator DeWine. Judge Gwin. 

Judge GwiN. I think it is so terribly important that cases move 
along to an expeditious conclusion. After conversations with innu- 
merable people who have been involved in litigation, I find that one 
of their biggest concerns is how destructive and debilitating it is to 
have litigation pending. That is true for individuals. It is perhaps 
equally or more true for businesses. It is just to have the uncer- 
tainty of a litigation pending is very damaging. 

So I think it is extremely important for litigation to move along 
quickly. I think the ways we do that are well known. It requires 
an early intervention by the judge in terms of setting reasonable 
but firm dates for preparation of motions and trials. It requires a 
judge to stick to those dates, it requires a judge to quickly super- 
vise discovery disputes, and it requires a judge to quickly rule and 
supervise dispositive motions. 

The things that it takes to move a case along, I think, are well 
known, but it does require the hands-on effort of a judge, and those 
are things I would like to have an opportunity to give to the North- 
ern District. 

Finally, I would comment, I am a big believer in alternative dis- 
pute resolution and I find that in many cases, it can help narrow 
the differences between the parties, even if it is not able to bring 
about a conclusion to the matter. So that would be another area 
where I would give emphasis. 

Mr. Kimball. I agree with Judge Gwin, that the litigation proc- 
ess can be very disruptive in people's lives and it is very important 
that it move along. I would also say it can be very, very expensive 
and if some of that expense can be saved by good management by 
judges, then that ought to be done. 

I have been an arbitrator. I have been a mediator. I have rep- 
resented clients in front of arbitrators and in front of mediators 
and I would encourage the voluntary, but not mandatory, use of 
those ADR processes. 



371 

I believe in the early intervention and management that has 
been discussed. Perhaps there is no more important case manage- 
ment technique than timely and well-explained decisions, and I 
would hope to be able to render those. I believe it is important to 
utilize the magistrate judges and I consider myself a good manager 
and would utilize the various management techniques for moving 
things along and keeping them orderly that I have utilized in my 
la^v practice. 

Senator DeWine. Mr. Marbley. 

Mr. Marbley. Thank you, Mr. Chairman. 

Perhaps the single most important feature is the early entry of 
the judge into the fray. That is important because the judge can 
counsel the litigants on the expense of litigation, perhaps reach an 
early resolution of the matter through settlement or otherwise. 
Judges tend to be able to help the parties close the gap and resolve 
their differences. 

Also, the judge, I think, should counsel the litigants about the 
advantages of alternative dispute resolution, and I know that in 
our district, there are options in that respect, and so that would be 
another method to move the cases along. 

Third, I think that it will be important to resolve motions that 
are pending, particularly discovery motions or dispositive motions. 
Certainly, magistrate judges can be used for that and those mag- 
istrate judges who perhaps have their own backlog and cannot do 
it, you certainly can rely on your law clerks to get much of that 
research done to resolve pending motions. 

Finally, and perhaps most important, is to establish a reputation 
for setting realistic discovery deadlines and trial dates and sticking 
to them. A judge who has a reputation for having firm trial dates 
is a judge who moves his docket along with a great deal of dis- 
patch, and I think that once the litigants in your district realize 
that you are going to adhere to those trial dates and that they are 
firm, then you will see a lot more motion in terms of getting mat- 
ters resolved. 

Senator DeWine. Judge. 

Judge Siragusa. As I listen to my colleagues, the old maxim of 
justice delayed is justice denied comes to mind, and I think it is 
true, and I think the ultimate responsibility is with the presiding 
judge to manage his caseload. Certainly, the techniques that have 
been suggested are good ones. I think it starts with a judge who 
actively is involved in his case, who utilizes scheduling orders, and 
I agree to set realistic demands and not grant adjournments unless 
there is a legitimate reason. Certainly in Federal court, the use of 
magistrate judges to deal with both nondispositive and dispositive 
motions. 

I agree that it is important for a judge to establish a reputation 
that the judge is prepared and willing to do the work, and I think 
you do that by rendering prompt decisions. I found that attorneys 
can live with a decision that goes against them because then they 
can proceed to the next step. What they cannot live with is deci- 
sions that pend for months upon end. 

Certainly, the use of mediation or alternative methods of dispute 
resolution is something that I think can be utilized to deal with our 
backlog. Thank you. 



372 

Senator DeWine. Judge, let me continue with you, if I could. 

Judge SiRAGUSA. Yes. 

Senator DeWine. You, in April of this year, had a writing that 
had to do with cameras in the courtroom.. Do you want to tell us 
about that? 

Judge SiRAGUSA. Sure. 

Senator DeWine. Any conclusions you reached, or 

Judge SiRAGUSA. I was careful not to give any conclusion to the 
presentation, but basically, I was asked as part of the continuing 
education program to present both the pros and the cons on cam- 
eras in the courtroom and I made that presentation. I would be 
glad to comment on it. 

I should preface it by saying, in June of this year, the New York 
experiment on cameras in the courtroom ceased. There is no legis- 
lation now. So since I am a sitting judge, I will speak to what my 
experience has been on cameras in the courtroom. 

In New York, the purpose of promulgating rules on cameras in 
the courtroom was a recognition by the legislature that it was im- 
portant to enhance the citizens' understanding of our criminal jus- 
tice system and thereby promote both confidence in the judiciary 
and also to promote the fair administration of justice, and that is 
why these rules for cameras in the courtroom were initially enacted 
back in 1987. 

In my experience in New York, both in trying cases that were 
some televised live and in presiding on cases, the goals of the ex- 
periment have been approached, but I think it primarily de- 
pends 

Senator DeWine. The goals have been- 



Judge SiRAGUSA. Approached. I am not going to — quote, ap- 
proached. I am not going to say 

Senator DeWine. What does that mean? 

Judge SiRAGUSA. I think it would be naive to say that we have 
achieved exactly what the legislature intended, but I think in New 
York they have been approached, but it largely falls because of 
three reasons, the responsibility of the media, the responsibility of 
the attorneys, and the responsibility, of course, of the judge. 

In my experience in Monroe County, the media has been respon- 
sible about not being intrusive in the positioning of cameras and 
following the dictates of the judge. The litigants have not engaged 
in histrionics. There has not been theatrics. They have not been 
playing to the cameras. And I hope myself, as a judge, and cer- 
tainly the judges who have presided on cases that I have tried that 
have been publicized, have kept control of their courtroom and 
were consistent in the demeanor that was established in the court- 
room, whether the presentation was televised or not. 

Senator DeWine. Any unintended consequences, based on either 
your personal experience or what you found out? 

Judge SiRAGUSA. No. I think, to share an aside, I mean, and why 
I said the goal was approached, when I was in the D.A.'s office, I 
tried a case that was televised live for 12 weeks and after the case 
was over, more than one citizen came up and said they were im- 
pressed by the professionalism both of the prosecutor, the defense 
attorneys, and the judges, and I think that speaks toward the pur- 
pose of approaching the goal. 



373 

Senator DeWine. Mr. Kimball, let me refer to something that 
you wrote a few years ago, I believe it is entitled "The Constitu- 
tional Convention, Its Nature and Powers, and the Amending Pro- 
cedure," Utah Law Review. It has been a few years ago, I guess. 

Mr. Kimball. A lot of years ago. 

Senator DeWine. I guess maybe the lesson that people take 
away from these hearings is do not ever write an3rthing so you will 
not be asked questions — but I hope that is not the lesson. 

Considering the job that you have been nominated for, I wonder 
what you learned from pertbrming research for that law review ar- 
ticle that might be of any relevance to your service on the Federal 
bench. 

Mr. Kimball. As I recall that law review article, it was basically 
about State constitutions and the amending process and problems 
that arose and how conventions were called and what powers they 
had and so on. 

I think I gained a greater respect for both what constitutions say 
and what the people say through their whatever it be, whether it 
is the writing of the Constitution or the writing of legislation. That 
has to be given great deference by a judge. That is one thing I 
would have learned through writing that article. 

Senator DeWine. Let me ask each one of you, and we will start 
with Mr. Casey — ^you had the opportunity — I think you were all in 
the room when the circuit court nominees were here — to hear a se- 
ries of questions in regard to a problem that Federal court judges 
have to deal with — and that is State prison systems. I wonder if, 
based on what you heard today, you have any additional comments 
about that, about your philosophy, and how you approach that type 
of a case. 

Please understand, I am not asking you to comment about any 
particular case. I am not asking you, obviously, to comment about 
anything we already have discussed. But I would just like to know 
your approach in general. You all had the opportunity to hear the 
two judges talk earlier and I wonder if you have anything to add 
to that. Mr. Casey. 

Mr. Casey. Well, Senator, I was very interested by the comments 
of the two candidates. It is a problem which, I think, many mem- 
bers of the court in the Southern District are concerned about. 
However, it is a responsibility of the judge, regardless of who the 
litigants are, to give them a fair and reasonable hearing, just as 
they would to anyone else. 

Senator DeWine. Judge Gwin. 

Judge Gwin. I would generally think that in all cases, there 
ought to be differentiated management, and so I think it is impor- 
tant for the judge on a case to take an early perspective on the 
case, the claims made, and put it on a track that leads to a final 
disposition commensurate with the claims made and the defense as 
a surrogate. 

I use that as background to say that I think it is important for 
judges to separate the wheat from the chaff in terms of this type 
of litigation and others and to set these type of cases on a path 
where they come to final disposition fairly, but not running a case 
that should be resolved quickly through a long history of litigation 
before a final resolution is reached. 



45-964 98 - n 



374 

So I would comment just generally, I think that is important in 
all civil litigation and I think it applies equally to the prison litiga- 
tion. It applies similarly to habeas corpus litigation. 

Senator DeWine. The prison cases are, to some extent, unique in 
the sense that we have had experience with special masters with 
whom these cases go on and on for years. I know that is not totally 
unique to prisons. It happens in other areas, as well. It might hap- 
pen in a school district. But some of these cases go on and on and 
on. That is something that I think I have some sensitivity to be- 
cause of the previous position I held and some of the problems that 
I saw. I know it is very difficult to comment in general about that. 

Mr. Kimball. 

Mr. Kimball. I agree with what these two gentlemen on my left 
have said, but I would also say that it seems to me that it would 
be a very unusual and unique set of circumstances that would re- 
quire or even allow a judge to really get into the management busi- 
ness, which I think is partly what you are talking about. I do not 
really see that as part of the job description. 

Senator DeWine. Mr. Marbley. 

Mr. Marbley. I think that I can answer your question in two re- 
spects. First, these matters have to be dealt with expeditiously be- 
cause they are administrative matters and an early resolution is 
important to everyone involved, the inmates as well as the prison 
officials. 

Second, and perhaps more importantly, you have to subject them 
to the same type of analysis that you would most other cases. You 
start with whatever existing precedent is and then as far as the 
issues that were discussed here today, it appears that as long as 
there are no suspect classifications involved, you use a rational re- 
lationship test, and in doing so, you give substantial deference to 
officials who are enacting a particular program or whatever the 
issue may be before the court. 

So as long as you take that sort of analytical approach that we, 
as lawyers, are trained to do and abide by the doctrine of stare de- 
cisis, as we as article III judges are obligated to do, I think that 
you can pretty much dispose of that litigation expeditiously and 
fairly. 

Senator DeWine. Judge. 

Judge SiRAGUSA. Again, I do not know that I will add anything 
new, but I do believe that deference should be given to administra- 
tive decisions. Obviously, if there is a rational basis for an adminis- 
trative decision affecting an inmate, it should be upheld. If cases 
get to the court system, then I think it is the responsibility of the 
judge, where possible, to separate the frivolous lawsuits out and to 
deal with them expeditiously. 

Senator DeWine. Let me thank each one of you for your presence 
and for your patience today. I will again state that the record will 
remain open and you may get additional questions. If any of you 
want to supplement any of your answers, you are more than wel- 
come to do that by contacting the committee staff and you can do 
that in writing. 

Again, I appreciate your participation and appreciate the pa- 
tience of the members of your families, particularly the young 
members of your families. 



375 

Mr. Casey. Senator. 

Judge SiRAGUSA. Thank you very much. 

Mr. Marbley. Thank you very much. 

Mr. Kimball. Thank you very much. 

Judge GwiN. Thank you very much. 

Mr. Casey. Senator. 

Senator DeWine. Yes. 

Mr. Casey. Could I just, because I have to ride home with them 
on the plane, ask the chair to recognize Mr. and Mrs. Doyle, who 
came with me, too, because that would be a long ride home. 

Senator DeWine. It would be. Thank you, Mr. Casey, very much. 

Mr. Casey. Thank you, Senator. 

Senator DeWine. The committee is adjourned. 

[Whereupon, at 4:48 p.m., the committee was adjourned.] 

[Submissions for the record follow:] 



376 
SUBMISSIONS FOR THE RECORD 



SENATE JUDICIARY COMMITTEE QUESTIONNAIRE 
I. BIOGRAPHICAL INFORMATION (PUBLIC) 



Full neune (include any former names used) . 
Ronald Lee Gilman 



2. Address: List current place of residence and office 
address (es) . 

Office ; 

Farris, Mathews, Gilman, Branan & Hellen, P.L.C. 
One Commerce Square, Suite 2 000 
Memphis, Tennessee 38103 

Home ; 

Memphis, Tennessee 



Date and place of birth. 

October 16, 1942, in Memphis, Tennessee 



4. M arital Status (include maiden name of wife, or husband's 
name) . List spouse's occupation, employer's name and 
business address(es). 

Married to Betsy Dunn Gilman. Former preschool director. 
Currently a community volunteer. 



Education ; List each college and law school you have 
attended, including dates of attendance, degrees 
received, and dates degrees were granted. 

Massachusetts Institute of Technology 

1960-1964 

S.B. degree awarded in June of 1964 

Harvard Law School 

1964-1967 

J.D. degree awarded in June of 1967 



377 



Employment Record ; List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and 
organizations, nonprofit or otherwise, including firms, 
with which you were connected as an officer, director, 
partner, proprietor, or employee since graduation from 
college. 



Paid Employment 



1967 - present! 



Farris, Mathews, Gilman, Branan & 
Hellen, P.L.C. 

One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 



Associate 1967 - 1969; 
Partner since 1969 



1980 - Present; 



University of Memphis School of Law 
Memphis, Tennessee 38152 



Adjunct professor of Trial Advocacy 



1988 - Present: 



American Arbitration Association 
211 Seventh Avenue North, Suite 300 
Nashville, Tennessee 37219 



Arbitrator and Mediator 



1993 - Present: 



National Association of Securities 

Dealers 
10 S. LaSalle Street, 20th Floor 
Chicago, Illinois 60603 



Arbitrator and Mediator 



1994 - Present: 



Private Adjudication Center 
8000 Weston Parkway. Suite 330 
Cary, North Carolina 27513 



Dalkon Shield Referee 



-2- 



378 



Unpaid Activities 

1967 - Present: Memphis Bar Association (see 9 below) 
1967 - Present: Tennessee Bar Assn. (see 9 below) 

1967 - Present: American Bar Assn. (see 9 below) 

1995 - Present: Association of Attorney-Mediators 

(see 9 below) 

1991 - Present: Commercial Law Affiliates 

(see 9 below) 

1993 - Present: Boy Scouts of America, Chickasaw 

Council (Executive Board) 

1979 - Present: Society of Memphis Magicians 

(President 1986) 

1988 - 1995: Capital Case Resource Center 

of Tennessee (Board member) 

1984 - 1987: Memphis Jewish Home (Board member) 

1979 - 1987: Tennessee Court of the Judiciary 

(Member of the Court, serving 
without compensation. See 
14 below for an explanation 
of the Court's function.) 

1968 - 1973: Senior Citizens Services 

(Board member & Treasurer) 

1968 - 1973: Memphis Junior Chamber of Commerce 

(Parliamentarian - Legal 
Counsel 1971) 

I have also sat at various times throughout- the years as 
a special judge in the Shelby County Circuit Court and 
the Shelby County Probate Court at the request of several 
regular judges during their absences from the bench. 
Such service was without compensation. 



Military Service ; Have you had any military service? If 

so, give particulars, including the dates, branch of 

service, rank or rate, serial number and type of 
discharge received. 

No 



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379 



Honors and Awards : List any scholarships, fellowships, 
honorary degrees, and honorary society meniberships that 
you believe would be of interest to the Committee. 

Eagle Scout Award (1958) 

William L. Stewart, Jr. Award for "Outstanding 

Contributions to Extracurricular Life at M.I.T." 
(1964) 

Cum Laude graduate of Harvard Law School (1967) 

Sam A. Myar, Jr. Memorial Award for "Outstanding Service 
to the Legal Profession and the Community" (1981) 

Best Lawyers in America (Woodward/White) 

(Listed in categories of business litigation, 
corporate law, and estate planning) 

Who's Who in American Law (Marquis) 

Who's Who in America (Marquis) 



9. Bar Associations ; List all bar associations, legal or 
judicial-related committees or conferences of which you 
are or have been a member and give the titles and dates 
of any offices which you have held in such groups. 

Memphis Bar Association 
President (1987) 
President, Young Lawyers Division (1974) ^ 

Tennessee Bar Association 
President (1990-1991) 

Speaker, House of Delegates (1985-1987) 
President, Young Lawyers Conference (1978-1979) 

American Bar Association 

Member, House of Delegates (1990-Present) 

American Law Institute 

American Bar Foundation 

American Judicature Society 

American Arbitration Association 

Tennessee Bar Foundation 

Memphis Bar Foundation 

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380 



Association of Attorney Mediators (West Tennessee Chapter 
Vice President, 1996-Present) 

American College of Trust and Estate Counsel 

Life member, Sixth Circuit Judicial Conference 

Chair, Bankruptcy Merit Selection Panel for the 
Western District of Tennessee (1992-1993) 

Member, University of Memphis Law Dean Search Committee 
(1991-1993) 

Member, Federal Court Local Rules Revision Committee 
(1989-1992) 

Commercial Law Affiliates 

Board of Directors (1991 - 1993) 

Lawyers Journal Club of Memphis (This unincorporated 
educational organization has no bylaws.) 

10. other Memberships ; List all organizations to which you 
belong that are active in lobbying before public bodies. 
Please list all other organizations to which you belong. 

American Mensa, Ltd. 

B'nai B'rith 

Boys Scouts of America, Chickasaw Council 

Economic Club of Memphis (A copy of the Bylaws of this 
organization is attached to this Questionnaire as 
Exhibit 1.) 

Estate Planning Council of Memphis (A copy of the 

Bylaws of this organization is attached to this 
Questionnaire as Exhibit 2.) 

Kiwanis Club of Memphis (A copy of the Constitution and 
Bylaws of this organization is attached to this 
Questionnaire as Exhibit 3.) 

International Brotherhood of Magicians 

Society of Memphis Magicians 

I am not aware that any of the above organizations are 
active in lobbying before public bodies, although the Boy 
Scouts and B'nai B'rith may occasionally do so. 

-5- 



381 



11. Court Admission : List all cour^ s in which you have been 
admitted to practice, with dates of admission and lapses 
if any such memberships lapsed. Please explain the 
reason for any lapse of membership. Give the same 
information for administrative bodies which require 
spe<.ial admission to practice. 

Shelby County Chancery Court 1967 

Shelby County Circuit Court 1967 

Shelby County General Sessions Court 1967 

Shelby County Probate Court 1967 

Shelby County Criminal Court 1967 

Tennessee Court of Appeals 1967 

Tennessee Supreme Court 1967 

Unites States District Court 

for the Western District of Tennessee 1967 

United States Tax Court 1980 

United States Cou. t of Appeals 

for the Sixth Circuit 1973 

United States Supreme Court 1971 



12. Published Writings ; List the titles, publishers, and 
dates of books, articles, reports, or other published 
material you have written or edited. Please supply one 
copy of all published material not readily available to 
the Committee. Also, please supply a copy of all 
speeches by you on issues involving constitutional law or 
legal policy. If there were press reports about the 
speech, and they are readily available to you, please 
supply them. 



BOOK 

Tennessee Corporations . Lawyers Cooperative Pub. Co. 
(1980; supplemented annually through 1994) 



382 



ARTICLES IN LEGAL PERIODICALS 

"The Extension of the Privilege to Libel Without 

Actual Malice," 3 Harvard Legal Commentary 169 (1966) 

"Medical Expert Testimony in Tennessee," 34 Tennessee 
Law Review 572 (1967) 

"Non-Tax Aspacts of Estate Planning," 2 Memphis State 
University Law Review 41 (1971) 

"Annotated By-Laws for a Tennessee Corporation," 
Tennessee Bar Journal (May, 1975) 

"Agreements for Buying and Selling a Business," 
The Practical Lawyer (Jan., 1977) 

"Saving for College with a Clifford Trust," 
The Practical Lawyer (June, 1979) 

"The Holographic Codicil," Tennessee Bar Journal 
(August, 1982) 

"Dishonesty Alone Dov^.s Not Deck a Fidelity Insurer," 
Insurance Counsel Journal (October, 1984) 

"Tangible Evidence in Tennessee," Tennessee Bar Journal 
(May/June, 1986) 

"Planning for Disability," The Practical Lawyer 
(March, 1989) 

"The Shifting Focus of Estate Planning from Death 

to Disability," Tennessee Bar Journal (May/June, 1989) 

"Pro Bono & You," Tennessee Bar Journal 
(March/April, 1993) 

"Mediation: Prime ADR Tool of the '90s," Tennessee Bar 
Journal (March/April, 1994) 

"Resolving Commercial Cases through Alternative Dispute 
Resolution," 26 University of Memphis Law Review 1121 
(Spring, 1996) 



OTHER ARTICLES 

President's Column in Memphis and Shelby County 

Bar Forum during my year as Memphis Bar Association 
President in 1987 (Issued quarterly) 



-7- 



383 



President's Column in The Bar Flyer (name changed in 1987 
to The Bar Essentials ) during my year as President of 
the Memphis Bar Association 

Letter to the Editor written as President of the 

Memphis Bar Association, replying to an editorial 
titled "Only Lawyers Lose." (Published in the 
Memphis Commercial Appeal on December 27, 1987) 

President's Column in the Tennessee Bar Journal and 
Across the Bar during my year as President of the 
Tennessee Bar Association in 1990-1991. 

Travel report to Singapore, published in the Memphis 
Business Journal on October 9, 1989. 



SPEECHES 

I have made no speeches on issues involving 
constitutional law or legal policy. 



CONTINUING LEGAL EDUCATION PROGRAMS 

I have made numerous talks over the last 28 years at 
various Bar Association continuing legal education 
programs in the areas of estate planning, business 
organizations, trial practice, and mediation. Many of 
these programs required the preparation of handout 
materials. I have not made a practice of saving these 
materials. Copies of such handouts, to the extent 
available in the files of the Memphis Bar Association and 
the Tennessee Bar Association (the two organizations that 
have sponsored almost all of the talks I have given) , 
have been supplied. 



Health : What is the present state of your health? List 
the date of your last physical examination. 

Excellent. Last general physical exam was on May 5, 
1997. 



384 



14. Judicial Office ; State (chronologically) any judicial 
offices you have held, whether such position was elected 
or appointed, and a description of the jurisdiction of 
each such court. 

Tennessee Court of the Judiciary, 1979-1987. I was 
appointed as a member of the Court by the Tennessee Bar 
Association. The Court has jurisdiction over 
disciplinary complaints against state court judges. 
During my time on the Court, it met semi-annually to 
handle vari<5us disciplinary complaints, as well as 
adjudicated several cases against judges where no 
voluntary settlement could be reached. 

I have also sat on various occasions as a special judge 
in the Shelby County Circuit Court and the Shelby County 
Probate Court at the request of several regular judges 
during their absences from the bench. 



15. Citations ; If you are or have been a judge, provide: 
(1) citations for the ten most significant opinions you 
have written; (2) a short summary of and citations for 
all appellate opinions where your decisions were reversed 
or where your judgment was affirmed with significant 
criticism of your substantive or procedural rulings; and 
(3) citations for significant opinions on federal or 
state constitutional issues, together with the citation 
to appellate court rulings on such opinions. If any of 
the opinions listed were not officially reported, please 
provide copies of the opinions. 

I wrote no opinions as a member of the Court of the 
Judiciary. My only written opinion during my service as 
a special judge was in the Circuit Court case of Rita 
Hahn, et al. v. John Freeman, et al. . Case No. 82401 
(Opinion dated November 30, 1981). The Tennessee Court 
of Appeals unanimously affirmed my Opinion on 
November 22, 1982. Copies of both my Opinion and the 
Opinion of the Tennessee Court of Appeals are attached as 
Exhibit 4 to the full sets of this Questionnaire. 



16. Public Office r State (chronologically) any public 
offices you have held, other than judicial offices, 
including tho terms of service and whether such positions 
were elected or appointed. State (chronologically) any 
unsuccessful candidacies for elective public office. 

None 

-9- 



385 



17. Legal Career ; 



a. Describe chronologically your law practice and 
experience after graduation from law school, 
including: 

1. whether you served as clerk to a judge, and if 
so, the name of the judge, the court, and the 
dates of the period you were a clerk; 

Not applicable 

2. whether you practiced alone, and if so, the 
addresses and dates; 

Not applicable 

3. the dates, names and addresses of law firms or 
offices, companies or governmental agencies 
with which you have been connected and the 
nature of your connection with each. 

1967 - present: Farris, Mathews, Gilman, Branan & 
Hellen, P.L.C. 

One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 

Associate 1967-1969; 
Partner since 1969 



1979 - 1987: Tennessee Court of the Judiciary 
100 Supreme Court Building 
Nashville, Tennessee 37219 

Judge appointed by the Tennessee Bar 
Association 



1980 - Present: University of Memphis School of Law 
Memphis, Tennessee 38152 

Adjunct professor of Trial Advocacy 



1988 - Present: American Arbitration Association 

211 Seventh Avenue North, Suite 300 
Nashville, Tennessee 37219 

Arbitrator and Mediator 



-10- 



386 



1993 - Present: National Association of Securities 

Dealers 
10 S. LaSalle Street, 20th Floor 
Chicago, Illinois 60603 

Arbitrator and Mediator 



1994 - Present: Private Adjudication Center 

8000 Weston Parkway. Suite 330 
Cary, North Carolina 27513 

Dalkon Shield Referee 



b. 1. What has been the general character of your 
law practice, dividing it into periods with 
do:tes if its character has changed over the 
years? 

Early in my legal career (1967-1973), I represented 
indigent defendants in the United States District 
Court for the Western District of Tennessee and 
engaged in a very general practice. Later (1974- 
1984) I began to concentrate in the areas of estate 
planning, business formation, and commercial 
litigation. Since 1985, my primary emphasis has 
been in the areas of commercial litigation, 
arbitration, and mediation. 



2. Describe your typical former clients, and 
mention the areas, if any, in which you have 
specialized. 

My typical clients are business corporations, an 
insurance company, a bank, other lawyers, and 
individuals with moderate to large estates. 

My areas of concentration are the following: 

Business Litigation . Much of my practice has been 
in the U.S. District Court and the Shelby County 
Chancery Court representing litigants as both 
plaintiffs and defendants in cases dealing with 
contractual, statutory, or constitutional disputes. 
Such cases have included issues dealing with 
fidelity bonds, commodity contracts, securities 
laws, bank regulations, statutory ambiguities, and 
alleged constitutional violations. Many of these 
cases have required extensive document production 
and numerous depositions. My longest jury trial, 

-11- 



387 



for example, lasted six and one-half weeks in the 
U.S. District Court and involved over 40 pretrial 
depositions, many witnesses, massive exhibit books, 
and thousands of pages of documents. The case 
arose from the failure of the Butcher banking 
system, and was settled near the end of the trial 
with a recovery to my client of over one million 
dollars. 

Representation of Other Lawyers . I am currently 
defending various local attorneys in four separate 
cases, with the issues ranging from legal 
malpractice to statutory violations to contract 
disputes. 

Estate Planning . I have drafted hundreds of wills, 
trusts, durable powers of attorney, and living 
wills over the past 29 years for clients with 
moderate to large estates. These instruments often 
incorporate the use of the unlimited marital 
deduction and credit shelter trusts to minimize the 
impact of the federal estate tax on the individuals 
and their families. 

Mediation and Arbitration . I am currently 
certified as a trained mediator by both the United 
States District Court for the Western District of 
Tennessee and the Tennessee Supreme Court. I am 
also a member of the arbitration panels for the 
American Arbitration Association, the National 
Association of Securities Dealers, and the Private 
Adjudication Center associated with Duke 
University. I have served as a mediator in 38 
cases and as an arbitrator in 15 cases within the 
last few years. The cases have included claims of 
personal injury, wrongful death, statutory 
violations, property damage and distributions, 
medical and legal malpractice, contract disputes, 
and business dissolutions. 



1. Did you appear in court frequently, 
occasionally, or not at all? If the frequency 
of your appearance in court varied, describe 
each such variance, giving the dates. 

I appear in court occasionally as needed for the 
various cases I am handling. My appearances in 
court were more frequent during my first 20 years 
of practice. In the last 10 years, I have made 
fewer appearances in court, but the cases I have 
handled have tended to be larger and more complex. 

-12- 



388 



I have also become increasingly involved in 

arbitration and mediation, having served as an 

arbitrator in 15 cases and as a mediator in 38 
cases within the last few years. 



2. What percentage of these appearances was in: 

(a) federal courts; 
50% 

(b) state courts of record; 
35% 

(c) other courts. 
15% 

3. What percentage of your litigation was: 

(a) civil; 
90% 

(b) criminal. 
10% 

4. State the number of cases in courts of record 
you tried to verdict or judgment (rather than 
settled) , indicating whether you were sole 
counsel, chief counsel, or associate counsel. 

I have tried to judgment or verdict in courts of 
record 37 cases. I have also handled 24 appeals in 
the federal and state courts. I served as either 
sole or chief counsel in all of these cases. 

5. What percentage of these trials was: 

(a) jury; 
25% 

(b) non-jury. 
75% 



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389 



18. Litigation ; Describe the ten most significant litigated 
matters which you personally handled. Give the 
citations, if the cases were reported, and the docket 
number and date if unreported. Give a capsule summary of 
the substance of each case. Identify the party or 
parties whom you represented; describe in detail the 
nature of your participation in the litigation and the 
final disposition of the case. Also state as to each 
case: 

(a) the date of representation; 

(b) The name of the court and the name of the judge or 
judges before whom the case was litigated; and 

(c) The individual name, addresses, and telephone 
numbers of co-counsel and of the principal counsel 
for each of the other parties. 



FEDERAL CASES 

1. Gau Shan Company, Ltd. v. Bankers Trust Company & 
The Julien Company, United States District Court 
for the Western District of Tennessee, Civil Action 
No. 90-2122; 956 F.2d 1349 (6th Cir. 1992) 

This case involved a $20 million dispute between 
Gau Shan (a Hong Kong cotton merchant) , The Julien 
Company (a bankrupt Memphis cotton merchant) , and 
Bankers Trust Company (a major New York bank) . I 
represented Gau Shan as lead counsel, both 
presenting all the proof in the trial court and 
arguing the case on appeal. 

Gau Shan filed suit in the United States District 
Court for the Western District of Tennessee in 
February of 1990 to enjoin Bankers Trust Company 
(BTC) from suing in Hong Kong for the collection of 
a $20 million promissory note signed by Gau Shan 
for cotton that was never delivered due to the 
bankruptcy of The Julien Company (TJC) . After a 
three day injunction hearing before U.S. District 
Judge Robert M. McRae Jr. in May of 1990, the 
District Court enjoined BTC from filing suit in 
Hong Kong on a finding of fraudulent 
misrepresentation by the bank relating to the 
signing of the note. The whole issue of "foreign 
anti-suit injunctions" and "international comity" 
was decided by the Sixth Circuit Court of Appeals 
on February 24, 1992. 

-14- 



390 



The Sixth Circuit reversed Judge McRae and remanded 
the case back to the District Court for trial. The 
case was then mediated by U.S. District Judge Julia 
S. Gibbons, resulting in a partial settlement with 
BTC. The remainder of the claims between Gau Shan 
and TJC was then arbitrated for three days in 
February of 1993 before a panel of distinguished 
neutrals drawn from a list prepared by the Center 
for Public Resources. 

BTC was represented by: 

Lee L. Piovarcy 
22 North Front Street 
Memphis, Tennessee 38103 
(901) 522-9000 

TJC was represented by: 

David J. Harris 
130 Court Avenue 
Memphis, Tennessee 38103 
(901) 524-5120 

Assisting me within my own firm was: 

Rebecca P. Tattle 
One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 



2. Charles D. Winston v. Federal Express Corp., United 
States District Court for the Western District of 
Tennessee; 853 F.2d 455 (6th Cir. 1988) 

I was the sole attorney for the plaintiff Winston 
in both the trial court and on appeal, handling all 
aspects of the case. The Complaint for a 
Declaratory Judgment was filed on May 28, 1986, 
seeking to recover $176,570 in profits from the 
plaintiff's sale of his Federal Express stock that 
Federal Express impounded following his sale of the 
same on March 26, 1986. The issue in the case was 
whether the District Court erred in holding that 
the plcintiff was an officer of Federal Express 
within the meaning of Section 16(b) of the 
Securities Exchange Act of 1934 when he purchased 
8,298 shares of its stock on September 30, 1985. 
U.S. District Judge Julia S. Gibbons granted 
summary judgment in favor of Federal Express on 
April 28, 1987, although she acknowledged that "the 

-15- 



391 



question is an extremely close one ..." The Sixth 
Circuit Court of Appeals affirmed the ruling of the 
District Court. 

The case was significant in that it involved the 
proper interpretation of the "short swing profit" 
prohibition of Section 16(b) of the Securities 
Exchange Act in light of the facts presented. 

Federal Express was represented by: 

Veronica F. Coleman 

(currently the United States Attorney for the 

Western District of Tennessee) 
800 Federal Building 
Memphis, Tennessee 38103 
(901) 544-4231 



3. Interstate Brands Corp. v. Hartford Accident & 
Indemnity Co., United States District Court for the 
Western District of Tennessee; Sixth Circuit Court 
of Appeals, No. 82-5660 (1984) (noted at 729 F.2d 
1461 as an unpublished opinion) 

I was the sole attorney for the defendant Hartford 
in both the trial court and on appeal, handling all 
aspects of the case. The Complaint sought recovery 
on a fidelity bond claim for $223,716 plus a bad 
faith penalty against Hartford. The case was filed 
on March 27, 1981. A jury verdict for Hartford was 
rendered on September 13, 1982, and the verdict was 
affirmed by the Sixth Circuit Court of Appeals on 
February 3, 1984. U.S. District Judge Odell Horton 
presided over the trial. The case was significant 
in recognizing the subtle difference between 
fidelity insurance and surety bonds where the 
plaintiff had previously obtained state court 
judgments against the dishonest employees. 

The plaintiff was represented by: 

Patrick M. Ardis 
6055 Primacy Parkway, Suite 360 
Memphis, Tennessee 38119 
(901) 763-3336 

and 



-16- 



392 



Glen G. Reid, Jr. 
6075 Poplar Avenue, Suite 650 
Memphis, Tennessee 38119 
(901) 537-1000 



4. Gilman v. FDIC, United States District Court for 
the Wes-tern District of Tennessee; 660 F.2d 688 
(6th Cir. 1981) 

This lawsuit, filed in 1976, alleged the violation 
of Regulation U margin requirements under the 
Securities Exchange Act of 1934. Seymour Gilman 
and Rosalind Gilman brought suit in the United 
States District Court to void a $139,500 promissory 
note signed by them and held by the FDIC as 
liquidator of the Hamilton National Bank of 
Chattanooga. I represented the plaintiffs (my 
parents) as their sole counsel, handling all 
aspects of the case both in the trial court and on 
appeal. 

On October 15, 1979, U.S. District Judge Robert M. 
McRae, Jr. rendered judgment for the plaintiffs. 
He voided the promissory note in question based on 
a violation of Regulation U by the bank. On 
December 1, 1981, the Sixth Circuit Court of 
Appeals reversed Judge McRae 's ruling and found for 
the FDIC. The case was settled prior to perfecting 
a petition for certiorari to the United States 
Supreme Court. 

This case involved complex and novel issues as to 
the interpretation of Regulation U, the measure of 
damages, whether a private right of action exists, 
and the status of the FDIC as liquidator. 

The FDIC was represented by: 

James W. McDonnell, Jr. 

6075 Poplar Avenue, Suite 650 

Memphis, Tennessee 38119 
(901) 537-1000 

and 

Mimi Phillips 

22 North Front Street, Suite 800 
Memphis, Tennessee 38103 
(901) 529-0606 



-17- 



393 



5. H. Molsen & Co., Inc. v. Flowers, et al.. United 
States District Court for the Western District of 
Tennessee No. C-72-139 (Judgment on Jury Verdict 
rendered on September 11, 1973; 62 F.R.D. 14 (1973) 

I was the plaintiff Molsen's sole attorney in this 
case, handling all aspects of the litigation. H. 
Molsen & Co., Inc. was a Texas cotton merchant who 
brought suit against a number of West Tennessee 
farmers and their agent for failure to deliver on 
their cotton contracts. Because the market value 
at the time of harvest was substantially higher 
than the contract price, the farmers failed to 
deliver all the contracted cotton. 

After a four-day trial and two more days of jury 
deliberation between August 27 and September 4, 
1973, the jury returned a verdict for Molsen in the 
sum of $21,750, and U.S. District Judge Harry W. 
Wellford added a $2,000 attorney's fee in the 
nature of punitive damages. The case was reported 
in the September 15, 1973 issue of Cotton Digest 
International with the headline "Molsen Wins 
Landmark Decision Against Farmers When Farmers 
Renege On Acreage Contract," and stated that it was 
the nation's first cotton contract case tried to a 
jury verdict in federal court. A copy of the 
article is attached to this Questionnaire as 
Exhibit 5. 

The defendants' attorneys were: 

John S. Wilder 

(currently Lieutenant Governor of Tennessee) 

108 E. Court Square 

Somerville, Tennessee 38068 

(901) 465-3616 

and 

Thomas F. Johnston 
80 Monroe Avenue, Suite 700 
Memphis, Tennessee 
(901) 523-8211 



STATE CASES 

6. United Physicians Ins. Risk Retention Group, et al. 
V. United American Bank of Memphis, Chancery Court 
for Davidson County, No. 94-1889; Tennessee Court 
of Appeals No. 01-A-01-9503-CH-00096 (1996) 

-18- 



394 



I was the lead counsel for the defendant United 
American Bank of Memphis (UAB) , both presenting all 
the proof in the trial court and arguing the case 
on appeal. The Complaint was filed in June of 1994 
by the Tennessee Commissioner of Commerce and 
Insurance, as the plaintiff's liquidator, to 
recover the sum of $800,000 that the Commissioner 
alleged had been received by UAB as a preferential 
payment. The case involved the proper 
interpretation of the Tennessee statutes dealing 
with preferences that may be avoided by a 
liquidator. 

This was a case of first impression in Tennessee as 
well as in the 29 other jurisdictions which have 
enacted the Insurers Rehabilitation and Liquidation 
Model Act. Nashville Chancellor Robert S. Brandt 
granted UAB's Motion to Dismiss the Commissioner's 
Complaint on January 20, 1995, and the Tennessee 
Court of Appeals affirmed the dismissal on 
February 7, 1996, The case was reported in the 
February 22, 1996 issue of Mealey's Litigation 
Report; Insurance Insolvency , a copy of which is 
attached to this Questionnaire as Exhibit 6, 

The Commissioner was represented by: 

William B. Hubbard 
424 Church Street, Suite 2900 
Nashville, Tennessee 37219 
(615) 251-5444 

My local co-counsel was: 

John Knox Walkup 
(currently Attorney General 

for the State of Tennessee) 
500 Charlotte Avenue 
Nashville, Tennessee 37243 
(615) 741-3491 

Assisting me within my own firm was: 

Rebecca P. Tuttle 
One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 



7. Mall of Memphis Associates v. Tennessee State Board 
of Equalization, et al.. Chancery Court of Shelby 
County, No. 106118-3; Tennessee Court of Appeals, 

-19- 



395 



No. 02A01-9609-CH-00214 (appeal pending, 1997) 

This case was filed in the Chancery Court of Shelby 
County by the Mall of Memphis in July of 1995, 
challenging the right of the Shelby County Assessor 
of Property to revalue the Mall's real estate for 
the tax year 1990 without simultaneously examining 
the values of all the hundreds of strip centers in 
Shelby County. I was retained to represent the 
Assessor and have been lead counsel for the defense 
in both presenting all the proof in the trial court 
and arguing the case on appeal. 

In March of 1996, Chancellor D. J. Alissandratos 
entered a Final Decree voiding the Mall of 
Memphis 's increased property tax assessment for the 
year 1990 on the basis that the Assessor's action 
violated the Mall's 14th Amendment rights under the 
United States Constitution. The Assessor and the 
State Board of Equalization appealed this decision 
to the Tennessee Court of Appeals, arguing that the 
Chancellor applied the wrong legal test in his 
determination of a constitutional violation. I 
argued the case before the Tennessee Court of 
Appeals on April 15, 1997. The case is currently 
under advisement. 

The Mall of Memphis was represented by: 

Clare Shields and Harry J. Skefos 
22 North Front Street, Suite 1100 
Memphis, Tennessee 38103 
(901) 522-9000 

The State Board of Equalization was represented by: 

Christine Lapps 

Assistant Attorney General 

404 Janes Robertson Parkway, Suite 2121 

Nashville, Tennessee 37243 

(615) 741-6424 

Assisting me v/ithin my own firm was: 

Steven C. Brammer 
One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 



8. Gaile K. Owens v. State of Tennessee, Shelby County 
Criminal Court No. P-8806; Tennessee Court of 

-20- 



396 



Criminal Appeals No. 02C01-9111~CR-00259 ; Tennessee 
Supreme Court, 908 S.W.2d 923 (Tenn. 1995) 

I was originally appointed by United States 
District Court Judge Jerome Turner in October of 
1989 to represent Gaile K. Owens on her petition 
for a writ of habeas corpus. Ms. Owens i^i and was 
an indigent defendant incarcerated at the Tennessee 
Prison for Women in Nashville. Prior to my 
appointment, she was convicted (on January 15, 
1986) of being an accessory before the fact to the 
first-degree murder of her husband, and was 
sentenced to death by the jury. The petition for 
writ of habeas corpus was dismissed without 
prejudice in September of 1991 in order to allow 
Ms. Owens to pursue her state petition for post- 
conviction relief which had been filed in February 
of 1991. I was thereafter appointed to continue 
representing Ms. Owens by state Criminal Court 
Judge Arthur T. Bennett, along with co-counsel 
Stephen B. Shankman. 

I petitioned Judge Bennett for an ex parte hearing 
to request authorization for investigative and 
support services necessary to protect Ms. Owens 's 
constitutional rights in a capital case post- 
conviction proceeding. Judge Bennett denied Ms. 
Owens 's petition, but allowed her an interlocutory 
appeal to the Tennessee Court of Criminal Apptals. 

The Tennessee Court of Criminal Appeals held that 
support services should be provided to an indigent 
prisoner in an appropriate case, but denied her 
right to an ex parte hearing to show her need for 
such Sijrvices. On the State's appeal to the 
Tennessee Supreme Court, the Supreme Court held 
that a proper interpretation of the Tennessee 
statutes and its own Rules entitled Ms. Owens to an 
ex parte hearing to request support services at the 
state's expense. The Opinion of the Tennessee 
Supreme Court was rendered on October 23, 1995. 

I was lead counsel for Ms. Owens in both the trial 
court and on appeal, both presenting the proof in 
the trial court and arguing the case on appeal. At 
the joint request of Stephen B. Shankman and 
myself. Judge Bennett discharged us from further 
responsibilities as Ms. Owens' counsel on November 
28, 1995, shortly after the successful 
interlocutory appeal. 



-21- 



397 



The State was represented by: 

Amy L. Tarkington 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37243 
(615) 741-2216 

Co-counsel in a related case consolidated for the 
appeal was: 

J. Brooke Lathram 
130 Court Avenue 
Memphis, Tennessee 38103 
(901) 524-5130 

Assisting me within my own firm was: 

Steven C. Brammer and Rebecca P. Tuttle 
One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 

My outside co-counsel was: 

Stephen B. Shankman 

(currently the Federal Public Defender) 
100 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 544-3895 



9. State of Tennessee, et al. v. County of Shelby, et 
al.. Circuit Court of Shelby County, No. 55237-4; 
Tennessee Supreme Court, No. 02S01-9312-CV-00083 
(1994) 

This case began in 1992 when the four 
African-American members of the Shelby County Board 
of Commissions brought suit in the United States 
District Court for the Western District of 
Tennessee to challenge the then-existing 
reapportionment plan for the Shelby County 
Commission. I was retained to represent the 
County, the Mayor, the Board of Commissioners, and 
the individual white Commissioners. As lead 
counsel, I both presented all the proof in the 
trial court and was principally responsible for the 
briefs on appeal. United States District Judge 
Jerome Turner stayed the action on July 9, 1993 in 
order to allow the state courts an opportunity to 
settle the underlying state law question of whether 

-22- 



398 



the required number of votes needed to adopt a 
reapportionment plan was a majority (pursuant to 
the applicable state statute) or two-thirds 
(pursuant to the Shelby County Charter) • 

State Circuit Court Judge James E. Swearengen 
entered an order on November 16, 1993 voiding the 
reapportionment plan approved by a majority vote. 
The defendants then appealed the trial court's 
order to the Tennessee Supreme Court, arguing that 
the trial judge erred in ruling that the Shelby 
County Charter controlled over a conflicting state 
statute. While the appeal was pending, the Shelby 
County Board of Commissioners reached a political 
compromise on December 7, 1993 by adopting a new 
redistricting plan by more than a two-thirds vote. 
The Tennessee Supreme Court subsequently dismissed 
the appeal as moot. 

The plaintiffs were represented by: 

P. A. Hollingsworth 

415 Main Street 

Little Rock, Arkansas 72202 

(501) 374-3420 

and 

Keith C, Kyles 

200 Jefferson Avenue, Suite 850 
Memphis, Tennessee 38103 
(901) 522-1200 

Assisting me within my own firm was: 

Rebecca P. Tuttle 
One Commerce Square, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 



10. Phil M. Canale, et al. v. Ruby Stevenson/ 458 

S.W.2d 797 (Tenn. 1970) 

I was lead counsel for the plaintiff Stevenson in 
both the trial court and on appeal, handling all 
aspects of the case. Ms. Stevenson brought suit to 
declare unconstitutional a Tennessee statute 
prohibiting the practice of fortune-telling in 
counties whose population exceeded 400,000 persons. 



-23- 



399 



Chancellor Charles Nearn ruled in favor of Ms. 
Stevenson after a trial in December of 1969, and 
his decision was affirmed by the Tennessee Supreme 
Court on October 5, 1970. The case was significant 
in that both the trial and appellate courts held 
that the statute was unconstitutional as arbitrary 
and capricious class legislation, because there was 
no discernable reason for the classification based 
on county population. 

The State was represented by: 

Eugene C. Gaerig 

(then an Assistant District Attorney General) 
100 North Main Building, Suite 3118 
Memphis, Tennessee 38103 
(901) 526-6000 

Supervising me within my own firm was: 

Henry H. Hancock 
One Commerce Sguare, Suite 2000 
Memphis, Tennessee 38103 
(901) 575-0100 



ARBITRATION AND MEDIATION CASES 

Other representative members of the Memphis legal 
community who have had recent contact with me in my 
capacity as an arbitrator or mediator are as 
follows: 

1. David M. Cook 

80 Monroe Avenue, Suite 650 
Memphis, Tennessee 38103 
(901) 525-8776 

2. Richard Glassman 

2 6 North Second Street 
Memphis, Tennessee 38103 
(901) 527-4673 

3. J. Kimbrough Johnson 

One Commerce Square, Suite 2900 
Memphis, Tennessee 38103 
(901) 525-8721 



-24- 



400 



4. Hayden Lait 

99 North Third Street 
Menphis, Tennessee 38103 
(901) 523-0301 

5. Earle J. Schwarz 

50 North Front Street, Suite 1300 
Memphis, Tennessee 38103 
(901) 543-8000 

6. Kenneth R. Shuttleworth 

200 Jefferson Avenue, Suite 1500 
Memphis, Tennessee 38103 
(901) 526-7399 



19. Legal Activities ; Describe the most significant legal 
activities you have pursued, including significant 
litigation which did not progress to trial or legal 
matters that did not involve litigation. Describe the 
nature of your participation in this question, please 
omit any information protected by the attorney-client 
privilege (unless the privilege has been waived.) 

I consider my service as President of the Memphis Bar 
Association (1987) , President of the Tennessee Bar 
Association (1990-1991) , and my membership in the House 
of Delegates of the American Bar Association (1990- 
Present) among my most significant legal activities. 

The programs and innovations that occurred during my term 
as President of the Memphis Bar Association included the 
establishment of a Lawyers Helping Lawyers Committee, a 
Corporate Counsel Section, a staff policy manual, the 
addition of a CLE Director/Section Administrator, a 
committee to plan for a new bar headquarters, new bylaws, 
a judicial evaluation program, and changing the election 
for bar leadership positions from in-person voting to a 
mail ballot system. 

The programs and innovations that occurred during my term 
as President of the Tennessee Bar Association included 
the formation of two new sections, one on criminal law 
and the other on environmental law, the drafting of a 
professional creed for Tennessee lawyers, the formation 
of special committees to study alternative dispute 
resolution, lawyer advertising, merit selection of 
judges, outreach to the public, and the pros and cons of 
a unified bar, and the formation of a Long Range Planning 
Committee to formulate a list of both goals and 
strategies to guide the Tennessee Bar Association's 
future activities. 

-25- 



401 



I also consider my service as a member of the Federal 
Local Rifles Revision Committee (1989-1992), as Chair of 
the Bankruptcy Merit Selection Panel for the Western 
District of Tennessee (1992-1993), as a board member of 
the Capital Case Resource Center of Tennessee (1988- 
1995) , and as a member of the University of Memphis Law 
Dean Search Committee (1991-1993) to be significant 
activities that have advanced the interests of our legal 
system. 



-26- 



402 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 



1. List sources, amounts and dates of all anticipated 
receipts from deferred income arrangements, stock, 
options, uncompleted contracts and other future benefits 
which you expect to derive from previous business 
relationships, professional services, firm memberships, 
former employers, clients, or customers. Please describe 
the arrangements you have made to be compensated in the 
future for any financial or business interest. 

Pursuant to the Farris, Mathews, Gilman, Branan & Hellen, 
P.L.C. Operating Agreement, I would be paid a lump sum 
within 90 days of my withdrawal from the firm for my 
interest in its tangible assets. I would receive no 
payment for accounts receivable or for work in process, 
and would thus have no continuing financial interest in 
the firm. I would also promptly transfer my account with 
the firm's 401 (k) Plan to an Individual Retirement 
Account. 



Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the 
categories of litigation and financial arrangements that 
are likely to present potential conf licts-of-interest 
during your initial service in the position to which you 
have been nominated. 

I do not anticipate any potential conf licts-of-interest. 
If any potential conflict were to arise, I would recuse 
myself from hearing any case in which even the appearance 
of a conflict might exist. Any potential conflicts would 
be resolved by fully complying with the applicable 
provisions of the Code of Judicial Conduct. 



3. Do you have any plans, commitments, or agreements to 
p^'rsue outside employment, with or without compensation, 
during your service with the court? If so, explain. 

No 



4. List sources and amounts of all income received during 
the calendar year preceding your nomination and for the 
current calendar year, including all salaries, fees, 
dividends, interest, gifts, rents, royalties, patents, 

-27- 



403 



honoraria/ and other items exceeding $500 or more (If you 
prefer to do so, copies of the financial disclosure 
report/ required by the Ethics in Government Act of 1978, 
may be svibstituted here.) 

A copy of the Financial Disclosure Report is attached to 
this Questionnaire as Exhibit 7. 



5. Please complete the attached financial net worth 
statement in detail (Add schedules as called for) . 

My financial net worth statement is attached to this 
Questionnaire as Exhibit 8. 



Have you ev«r held a position or played a role in a 
political campaign? If so, please identify the 
particulars of the campaign, including the candidate, 
dates of the campaign, your title and responsibilities. 

No 



-28- 



404 



III. GENERAL (PUBLIC) 



An ethical consideration under Canon 2 of the American 
Bar Association's Code of Professional Responsibility 
calls for "every lawyer, regardless of professional 
prominence or professional workload/ to find some time to 
participate in serving the disadvantaged." Describe what 
you have done to fulfill these responsibilities, listing 
specific instances and the amount of time devoted to 
each. 

Early in my legal career (1968-1973), I served as a board 
member and then as treasurer of Senior Citizens Services, 
a United Way Agency. Later I served for 3 years (1984- 
1987) on the board of the Memphis Jewish Home. For the 
past 5 years, I have served on the Executive Board of the 
Chickasaw Council of the Boy Scouts of America. For the 
past 2 of those years (1995 and 1996) , I was chair of the 
Special Scouting District. This is the District for 
physically and mentally handicapped youth with special 
needs. Our activities included a Learning for Life 
program in the schools and a Special Scouting Jamboree 
each fall. 

In the legal arena, I volunteered to represent indigent 
defendants in the federal court system prior to the 
establishment of the public defender's office. MOi e 
recently, I volunteered to represent an indigent death 
row inmate at the request of the Honorable Odell Horton, 
then Chief Judge of the United States District Court for 
the Western District of Tennessee. He explained that as 
President of the Tennessee Bar Association, my 
participation in a post-conviction proceeding would 
encourage other civil law practitioners to do the same. 
Because of the very modest rates of compensation for time 
spent in representing such indigents, I consider this as 
largely pro bono work. 



The American Bar Association's Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a 
judge to hold membership in any organization that 
invidiously discriminates on the basis of race, sex, or 
religion. Do you currently belong, or have you belonged, 
to any organization which discriminates -- through either 
formal membership requirements or the practical 
implementation of membership policies? If so, list with 
dates of membership. What you have done to try to change 
these policies? 

I do not belong to any organization that invidiously 

-29- 



405 



discriminates on the basis of race, sex, or religion. 
The Kiwanis Club of Memphis, prior to 1987, did not admit 
women to membership. I have been a member of the Kiwanis 
Club since 1981, though I have never been an officer or 
director of the organization. I voted to admit women as 
members every time it came to a vote. 



Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal 
courts? If SO/ did it recommend your nomination? Please 
describe your experience in the entire judicial selection 
process, from beginning to end (including the 
circumstances which led to your nomination and interviews 
in which you participated) . 

There is no selection commission in my jurisdiction to 
recommend candidates for nomination to the federal 
courts. I was recommended for this judicial position by 
my law partner Harlan Mathews, a former United States 
Senator from Tennessee. His recommendation was supported 
by numerous written endorsements from legal, political, 
and community leaders in Tennessee. I was not 
interviewed prior to Vice President Gore's decision to 
recommend me to the President for this judicial vacancy. 
I met briefly with Michael O'Connor in the White House 
Counsel's Office after my selection to discuss the 
process of background checks and to review the various 
forms to be completed. I have subsequently been 
interviewed by representatives of both the American Bar 
Association and the Federal Bureau of Investigation as 
part of their respective background investigations. 



Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, 
legal issue or question in a manner that could reasonably 
be interpretrid as asking how you would rule on such case, 
issue, or question? 

No 



Please discuss your views on the following criticism 
involving "judicial activism." 

The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It 
has become the target of both popular and academic 
criticism that alleges that the judicial branch has 
usurped many of the prerogatives of other branches and 

-30- 



45-964 98 



406 



levels of government. 

Some of the characteristics of this "judicial activism" 
have been said to include: 

a. A tendency by the judiciary toward problem-solution 
rather than grievance-resolution; 

b. A tendency by the judiciary to employ the 
individual plaintiff as a vehicle for the 
imposition of far-reaching orders extending to 
broad classes of individuals; 

c. A tendency by the judiciary to impose broad, 
affirmative duties upon governments and society; 

d. A tendency by the judiciary toward loosening 
jurisdictional requirements such as stanc'ing and 
ripeness; and 

e. A tendency by the judiciary to impose itself upon 
other institutions in the manner of an 
administrator with continuing oversight 
responsibilities. 

A federal judge needs to be mindful of the proper role of 
the judiciary in the basic constitutional scheme 
concerning the separation of powers. The federal courts 
must carefully balance their responsibilities as 
interprc l;ers of the constitution with the limited nature 
of their jurisdiction, their duty to resolve actual 
controversies on the narrowest possible grounds, and with 
due respect for the doctrine of judicial restraint. In 
particular, the judiciary should refrain from unwarranted 
intrusion into the legislative and executive processes 
that the constitution delegates to Congress and the 
Executive Branch. By the same token, the federal courts 
must maintain their judicial independence, remedy 
constitutional violations, and interpret statutory 
language in their basic role as the resolver of disputes 
properly brought before them. 



-31- 



407 



BY-LAWS 

OF 

ECONOMIC CLUB OF MEMPHIS 

ARTICLE I 

The name of this corporation shall be Economic Club of 
Memphis . 

ARTICLE II 

The purpose and objectives of the Economic Club of Memphis 
shall be those set forth in its charter of Incorporation, as 
such Charter now exists and as it may hereafter be amended from 
time to time, and no others. The aims and purposes of the cor- 
poration are to be carried out through any and all lawful acti- 
vities, both direct and through contributions to any other cor- 
poration, trusL fund or foundation whose purposes are chari- 
table, scientific, literary or educational, provided: 

1. That any such activity or contributions shall conform 
to any applicable restrictions or limitations set forth in the 
corporate charter. 

2. That any such activity or contribution shall conform to 
any restrictions which are imposed by the Internal Revenue Code 
on corporations described in Section 501(c)(3) of the Internol 

0* 



Revenue Code and Its regulations 



EXHIBIT 

1 1 



408 

The Economic Club of Memphis shall exercise only such 
powers as are in furtherance of its exempt purpose under the 
Internal Revenue Code. 

ARTICLE III 

Section 1 . The principal office of the corporation shall 

be located at City of Memphis, 

County of Shelby, State of Tennessee. The corporation may have 
such other offices as the Board of Directors may determine from 
time to time. 

Section 2. The fiscal year of the corporation shall be 
June 1 - May 31. 

ARTICLE IV 

Section 1. The elected officers of the corporation shall 
be a President , a Vice- President , a Secretary-Treasurer, and 
such other officers as may be elected in accordance with the 
provisions of this Article. 

Section 2. The Vice- President and Secretary-Treasurer shall 
be elected by the membership annually by written ballot to 
take office on June 1 for a term of one year or until their 
successor is elected and qualified, except as hereafter pro- 
vided . 

- 2 - 



409 



Section 3. The President shall be the Chief Executive 
Officer. He, or in his absence, the Vice President , or other 
executive officer, shall preside at all meetings of the Board 
and of the membership. The President shall preside at, or may 
choose a presiding officer for, each public discussion. 

Section 4. The Vice- President shall perform all of the 
functions of the President in his absence. Upon completion of 
his term as Vice- President he shall succeed to the office of 
President, which office he shall hold for an additional term. 
He shall also be President of the program Committee, which 
shall consist of himself and two other members selected by him 
with the approval of the Board of Directors. This Committee 
shall be responsible for recommending programs to the Board of 
Directors. 

Section 5. The Secretary-Treasurer shall perform such 
duties as ordinarily attached to that office, including 
keeping minutes of all meetings of the Board and Executive 
Committee. He shall have custody of the funds of the cor- 
poration. He shall be Chairman of the Finance Committee, which 
shall in addition to himself consist of not more than four or 
less than two other members selected by him with the approval 
of the Board. 

Section 6. There shall also be an Executive DJ rector , who 
shall be appointed by the President , subject to the approval of 
the Board. 

- 3 - 



410 

Section 7. Any officer elected or appointed may be removed 
at any time by a vote of a majority of the members of the Board 
of Directors whenever In its judgment the best interest of the 
corporation would be served thereby. 

Section 8. A vacancy in any office because of death, 
resignation, removal, discfualification, or otherwise, may be 
filled by the Board of Directors for the unexpired portion of 
the term. 

Section 9 . The several officers shall have such powers 
and shall perform such duties as may from time to time be spe- 
cified in resolutions or other directives of the Board of 
Directors. In the absence of such specifications, each officer 
shall have the powers and authority and shall perform and 
discharge the duties of officers of the same title serving in 
non-profit corporations having the same or similar general pur- 
poses and objectives as this corporation. The powers of the 
Executive Director however shall be limited to those delegated to 
him by the Board of Directors . 

ARTICLE V/ 

Section 1. The corporate powers of the Corporation shall 
be exercised and directed by a Board of Directors consisting of 



411 



12 members elected as provided in Article VII hereof and in 
addition such officers as qualify under Section 2 of Article v 
hereof. The Executive Director may unless the Board determines 
otherwise meet with the Board but shall have no vote. The 
President may with the consent of the Board designate others to 
attend its meeting but without vote . ^ 

The Board of Directors shall determine the policies 
programs of the corporation and the projects for which funds 
will be expended, provided, however, such policy determinations 
are within the exempt purposes as provided by Section 501 of 
the I.R.C. of the United states and the applicable Sections of 
the Tennessee Code Annotated under which this corporation is 
organized . 

The Board of Directors may, from time to time, appoint, as 
advisers, persons whose advice, assistance and support may be 
deemed helpful in determining policies and formulating programs 
for carrying out the corporate purposes. ^^-v- •"" 

The Board of Directors is authorized to employ such persons, 
including an Executive Director , officer, attorneys, agents, and 
assistants, as in its opinion are needed for the administration 
of the corporation and to pay reasonable compensation for ser- 
vices and expenses thereof. 



5 - 



412 



Each member of the Board of Directors shall serve in a 
fiduciary capacity and shall refrain from exercising any powers 
in such manner as to disqualify the corporation from federal 
income tax exemption as to qualified charitable organization or 
any gift from deduction as a charitable contribution, gift or 
bequest in computing federal income, gift or estate tax of the 
donor or his estate. 

Neither the Board of Directors, nor any of its members 
individually, shall be liable for acts, neglects or defaults or 
any employee, agent or representative selected with reasonable 
care nor for anything it may do or refrain from doing in good 
faith, including the following if done in good faith: errors 
In judgment, acts done or committed on advice of counsel, or 
any mistakes of fact or law. 

The Board of Directors may provide for such standing or 
special committees as it deems desireable, in addition to the 
committees herein provided for, and discontinue the same at its 
pleasure. Each such committee shall have such powers and 
peform such duties, not inconsistent with law, the Charter of 
the corporation, or these By-Laws, as may be delegated to it by 
the Board of Directors, vacancies in such committees shall be 
filled by the President or as the Board of Directors may provide. 



413 



Section 2. The President , the immediate past President , the 
Vice- President , and the Secretary-Treasurer shall (if not other- 
wise members of the Board of Directors) be Directors ex 
officio while holding those offices. 

Section 3- Officers (except the President) and Directors 
shall be ejected from and by the membership, by written ballot as 
herein provided. The directors shall be divided into three 
classes, each class consisting of four (4) directors. Each year 
the successors to the class of directors whose terms expire that 
year shall be elected to hold office for the term of three years, 
except as herein provided. 

Section 5. A majority of the Board of Directors shall 
constitute a quorum for the transaction of business at any 
meeting of the Board. The acts of a majority of the directors 
present at the meeting at which a quorum is present shall be 
the act of the Board of Directors. 

Section 6. Any vacancy occuring in the Board of Directors, 
including those resulting from an increase in the number of 
directors, shall be filled by the Board of Directors. A 
Director appointed to fil.l a vacancy shell serve for the unex- 
pired term of his predecessor in office. 



414 



Section 7. Directors as such shall not receive any compen- 
ation for their services, but shall be reimbursed for expenses 
incurred on behalf of the corporation. Nothing herein con- 
tained shall be construed to preclude any director from serving . 
the corporation in any other capacity and receiving compen- 
sation therefor. 

Section 8 . A regular meeting of the Board of Directors 
shall be held annually in June. Special meetings of the Board 
of Directors may be called by or at the request of the President 
or any three members of the Board of Directors, and shall be 
held at the principal office of the corporation or at such 
other place as the President may determine. 

Section 9 . Notice of Annual and Special Meetings of the 
Board of Directors shall be given at least ten (10) days pre- 
vious thereto by written notice delivered personally or sent by 
mail to each director at his address as shown by the records of 
the corporation. If mailed, such notice shall be deemed to be 
delivered when deposited in the United States mail in a sealed 
envelope so addressed, with postage thereon paid. Any director 
may waive notice of any meeting. The attendance of a director 
at any meeting shall constitute a waiver of notice of such 
meeting, except where a director attends a meeting for the 
express purpose of objecting to the transaction of any business 
because the meeting is not lawfully called or convened. The 
business to be transacted at the meeting need not be specified 

- a - 



415 



in the notice or waiver of notice of such meeting, unless spe- 
cifically required by law or by these Dy-Laws- 

ARTICLE VI 

Section 1- There shall be an Executive Committee composed of 
the elected officers and the immediate past President. The 
Executive Director shall be a member ex officio without vote. The 
Chairman shall preside at all of meetings of the Executive 
Committee, except that in the event of his absence fr. m any 
meeting, the members of the committee may designate one of 
their members to preside over such meeting. 

Section 2. Between meetings of the Board of Directors, the 
Executive Committee shall have all of the powers and duties of 
the Board, including the management of the corporation's 
business; the making of necessary arrangements for meetings; 
and the procuring of speakers nad the providing of payment for 
services, rents or other expenses incurred in carrying on the 
work of the corporation; but the Executive Committee shall have 
no po-er to increase the size of the membership of the Board of 
Directors or to fill vacancies, nor to amend these By-Laws. 

ARTICLE VII 

Section l. Any member may nominate any other member for 
any office or for the Board of Directors by so advising the 

- 9 - 



416 



Executive Director in writing before April 1. On or before that 
date each year, the President shall appoint a nominating commit- 
tee consisting of five (5) former Presidents (Chairmen) who are 
active members, subject to approval by the Board of Directors . . 
No more than twenty (20) days after its appointment the nominating 
committee shall make its report in writing to the President , con- 
sisting of the nomination of one member for each of the offices of 
Vice- President and Secretary-Treasurer and four (4) for the Board 
of Directors. These may but need not have been already nominated 
by another member. This report, together with the names of all 
members otherwise nominated, shall no later than May 1 be mailed 
to the membership together with a ballot prepared in such a way as 
to allow each member to vote for any such nominee individually or 
for a write- jn candidate of his choice. A] 1 such ballots shall 
state that in order to be counted they must be received by the 
Executive Director by June 1 . 

Section 2. On June 1 the candidate for each office 
receiving a plurality of the votes then received, and the four 
candidates for Director receiving the most votes shall be 
declared elected and take office. 

ARTICLE VIII 

Section 1. The Board of Directors on the recommendation of 
the President shall appoint a membership committee of three (3) 
members which shall act on all applications for membership by 
making recommendations to the Board of Directors. At such date 

- 10 - 



417 



as the membership reaches the total as set by the Board, new 
applications for membership shall be acted upon only at the 
regular meeting of the Board of Directors in June. 

Section 2. New members shall be elected upon nomination by a 
member. Each such nominee shall then be considered by the mem- 
bership committee, and recommendation of approval or disapproval 
shall be made to the Board, of Directors pursuant to Section 1 of 
Article VIII. Applicants approved by the Board of Directors shall 
become members of the corporation upon payment of initiation fee 
and dues fixed as provided herein, provided all other requirements 
for membership are met. 

Section 3. Any member wishing to resign may do so by 
filing with the Secretary, written notice of resignation, but 
such resignation shall not relieve the member so resigning of 
the obligation to pay any dues, assessments, or other charges 
theretofore accrued and unpaid and no return of dues previously 
paid will be made. 

ARTICLE IX 

Section 1. Regular meetings of the members shall be held 
at places and times designated by the Board of Directors. 

Section 2. Special meetings of the members may be called 
by the President or the Board of Directors, or not less than ten 

- 11 - 



418 



(10) members having voting rights, at a place in Memphis, 
Tennessee, to be designated by the President . The Executive 
Director upon receipt of notice of a request for a special meeting 
shall be charged with the duty of notifying the President who shall 
then be required to call such meeting not more than thirty (30) 
days thereafter. 

Section 3. Each member In good standing shall be entitled 
to one vote on each matter submitted to a vote of the members. 

Section 4. Written or printed notice stating the place, 
day, and hour of any meeting of members shall be delivered 
either personally or by mail, to each member entitled to vote 
at such meeting, not less than ten (10) nor more than twenty 
(20) days before the date of such meeting, by or at the direc- 
tion of the President or the secretary. In case of a special 
meeting or when required by statute or by these By-Laws, the 
purpose or purposes for which the meeting is called shall be 
stated in the notice. 

Section 5. Any notice or other communication required by 
these by-laws shall be deemed to be delivered when deposited 
in the United States mail addressed to the member at his 
address as it appears on the records of the corporation, with 
postage thereon prepaid. 



12 - 



419 



Section 6. Any action required by laws to be taken or per- 
mitted to be taken at a meeting of the members may be taken 
without a meeting if a consent in writing setting forth the 
action so taken is signed by a majority of all the members 
entitled to vote with respect to the subject matter thereof. 

Section 7. Twenty (20) members present at any meeting 
shall constitute a quorum at such meeting. If a quorum is not 
present at any meeting of members, a majority of the members 
present may adjourn the meeting from time to time without 
further notice. 

Section 8. At any meeting of members, a member entitled to 
vote may vote by proxy executed in writing by a member or by 
his duly authorized attorney in fact. No proxy shall be valid 
if dated three (3) months or more prior to the date of the 
meeting at which it is presented, except if such is an 
adjourned meeting and the original meeting was one at which the 
proxy would have been valid. 

ARTICLE X 

Section 1. The Board of Directors may authorise any officer 
or officers, agent or agents of the corporation, in addition 
to the officers so authorized by these By-Laws, to enter into 
any contract or execute and deliver any instrument In the name 

- 13 - 



420 



of and on behalf of the corporation, and such authority may be 
general or may be confined to specific instances. 

Section 2. All checks, drafts, or orders for the payment 
of money, notes, or other evidences of indebtedness issued in 
the name of the corporation, shall be signed by the Executive 
Director or by such officer or officers, agent or agents of the 
corporation, and in such manner as shall from time to time be 
determined by resolution of the Board of Directors. All per- 
sons so authorized shall be bonded. 

Section 3. All funds of the corporation shall be deposited 
from time to time to the credit of the corporation in such 
banks, trust companies, or other depositaries as the Board of 
Directors may select. 

Section 4. The Board of Directors may accept on behalf of 
the corporation any contribution, gift, bequest, or devise for 
any purpose of the corporation. 

ARTICLE XI 

The corporation shall keep correct and complete books and 
records of account and shall also keep minutes of the pro- 
ceedings of its members. Board of Directors, committees having 
and e,\ercising any of the authority of the Board of Directors, 
and the membership committee, and shall keep at the principal 

- 14 - 



421 



office a record giving the names and addresses of the members 
entitled to vote. All books and records of the corporation may 
be inspected by any member, or his agent or attorney for any 
proper purpose at any reasonable time, and shall be audited 
annually. 

ARTICLE XII 

Section 1. The Board of Directors shall determine from 
time to time the amount of initiation fee, if any, and annual 
dues payable to the corporation by its members, and shall give 
appropropriate notice thereof. 

Section 2. Annual dues shall be payable in advance by June 
1 of each year. The Board of Directors shall determine ini- 
tiation fees, if any, and the pro rata share of annual dues 
to be paid by new members upon election. 

Section 3. When any member is in default in the payment of 
dues for a period of four (4) months from the beginning of the 
period from which such dues became payable, his membership may 
thereupon be terminated by the Board of Directors as provided 
hereinabove. However, such default may be waived in advance 
thereof by the Executive Committee. 



422 



ARTICLE XIII 

Whenever any notice is required to be given under the pro- 
visions of T.C.A. 48-703, or the By-Laws of the corporation, a 
waiver thereof in writing signed by the person or persons 
entitled to such notice, whether before or after the time 
stated therein, shall be deemed equivalent to the giving of 
such notice. 

ARTICLE XIV 

These By-Laws may be altered, amended, or repealed, and new 
By-Laws may be adopted by a majority of the directors present 
at any regular meeting or at any special meeting of the Board 
of Directors, if at least ten (10) days written notice as given 
of intention to alter, amend, or repeal or to adopt new By-Laws 
at such meeting. 



- 16 
IITD/91/es-ecsb/61-76/cpm 



423 



4/92 



The purpose of the Charter Amendments which you are asked to approve 
today efiFective May 31. 1992, when Kurt Flexner retires, is to change the name 
of the registered agent of the Club to its new Executive Director. Robert L. 
Berl,: the address of the registered and principal office of the Club to Fogelman 
College of Business and Economics; to preserve the Club's tax exempt status 
by bringing the Charter into accord with present requirements of the Internal 
Revenue Code; and to take advantage of certain provisions of the Tennessee 
Corporation law dealing with the limitation of liability and indemnification of 
Directors. Copies of the proposed amendments are available to anyone desiring 
further details. 



Purpose for Board of Directors 

One of the purposes of the meeting of the Board of Directors is to adopt 
certain amendments to the By-Laws. The first amendment proposed for 
adoption merely implements the Board's earlier decision to modify the 
procedures relative to the appointment of members to sit upon the Nominating 
Committee. The text of the proposed amendment, which will be effective 
immediately upon approval by the Board, is inserted anc' underlined on page 7 
of the By-Laws which Is enclosed herewith. If adopted by the Board, said 
amendment is effective immediately. 

The remaining amendments proposed for adoption implement the Board's 
earlier decision to change the By-Laws with respect to the administration of 



424 



the Club. The proposed amendments are in accordance with the Report of the 
Transition Committee which was presented to the Board at Its meeting on May 
21. 1991. The text of these proposed amendments has been inserted in the 
enclosed set of By-Laws, and is underlined. If adopted by the Board, said 
amendments shall be effective as of July 1. 1992. 

In addition to the foregoing, proposed Articles of Amendment to the 
Charter of the Club shall be presented to the Board for Its review. Said Articles 
of Amendment reflect that as of July 1. 1992, the address of the principal 
office and registered office of the Club as well as the name of the registered 
agent of the Club will change. The Articles of Amendment also contain 
amendments which implement changes made to the Tennessee Nonprofit 
Corporation Act in 1987 by the Tennessee General Assembly. 

Some of the amendments contained In the Articles of Amendment can be 
adopted only by the members of the Club. Therefore, the Articles are being 
presented to the BoEird in order that the Board may consider recommending the 
Articles to the members for adoption at a meeting of the members. 



Presented to Members on ^mS- 



425 



RESTATED BYLAWS OF 
THE ESTATE PLANNING COUNCIL 
OF MEMPHIS, TENNESSEE, INC. 



ARTICLE I 
The Estate Planning Council of Memphis, Inc. shall be a 
Tennessee not for profit corporation pursuant to T.C.A. 
S 48-1-601 \et seq . 

ARTICLE II 



Membership 
The membership of this Council shall be comprised of: ■-" 

1. Trust Officers of trust companies and banks main- 
taining trust departments. 

2. Chartered Life Underwriters, 

3. Practicing Attorneys at Law. - 

4. ■ Certified Public Accountants in public service. 
Membership shall be limited to one hundred (100)^^«p >^/^tf5A/4ai»y 

members; the total membership for the years ended May 31, 
1981, 1982, 1983, 1984 and thereafter shall not exceed 
eighty-five (85), ninety (90), ninety-five (95), and one 
hundred (100) members respectively. Of the aforementioned 
professional classifications, no single participant group 
shall consist of more than forty (40%) per cent of such 
total. Espba-tei 4udfle& of Shelby County, J^de^.a!, F-stat.e- Tax 
E^xa mi xifers , and Xen n e sfi /^fe Ijahecfeiance. T-ax.. Ejcamxners , who meet 




426 



any of the above gualif ications^slxaXl-.noi: Restrict the 
,cX.ciMifications of which they .ar.e. a: roejnber, or the total 
number of members. To be qualified for membership, an 
applicant, after the adoption of these Bylaws, must have 



four (4) .years experience 
must be interested in. and 



in his category and such applicant- 
actively engaged in cooperative 
estate planning or compliance activities in the Memphis, 
Tennessee area. 

A member who is in a category which does not restrict . 
the total number of such member's category and the total 
number of members of the Council, and who ceases for, any 
reason not involving a question of moral turpitude, to be a 
member of such category, shall, upon written notice of such 
member's desire so to do, continue as a member of the 
Council in the proper category. By attrition the total 
number of members of the Council, and the affected category, 
shall be brought within the limitations otherwise . 
established by these Bylaws prior to the admittance of new 
members to the Council. 

Members shall be elected by-:;a::<majority vote, of . the 
Executive Committee upon recommendation of the Membership 
Committee. Applications for membership shall be submitted 
to the Secretary and shall be endorsed by five (5) members 



2 - 



427 



of the Council, three of whom shall be in different mem- 
bership classifications and only one of whom may be asso- 
ciated in business with the applicant. 

ARTICLE III 
Executive Committee 

All powers necessary for the governing of the Council 
shall be vested in an Executive Committee composed of the 
officers, the immediate past President of the Council, and 
four (4) members-at-large with no more than one (1) trom any 
participating group. 

At each annual meeting and at all other meetings for the 
election of members of the Executive Committee, two (2). 
members-at-large shall be elected for a term of two (2) 
years as members of the Executive Committee, with the 
remaLning members to continue in office until the expiration 
of their term or until their successors are elected. 

ARTICLE IV 

Officers 

The officers of the Council shall consist of a 

President, a Vice President, a Secretary and a Treasurer. 

The Vice President shall serve as Chairman of the Program 

Committee and the Secretary shall be Chairman of the 



- 3 



428 



Membership Conunittee/ The officers shall hold office for 
one (1) year or until their successor shall have been cho- 
sen. . 

ARTICLE V 
Quorum js 
Any five (5) members of the Executive Committee, shall 
constitute a quorum for the transaction of business.- The 
Executive Committee shall have the power to fill, for the 
unexpired term, any vacancy which may occur in any office or 
in their own body,, by a concurrence of at least five (5) 
members. 

The presence of twenty-five (25) members shall consti- 
tute a quorum for the transaction of business at any regular 
meeting of the Council, provided there shall be at least ten 
(10) days written notice of the time and place of the 
.meeting. 

ARTICLE VI 
Nominations and Elections 
The President shall, sixty (60) days prior to the date 
of each annual meeting, appoint a nominating committee to 
submit a list of nominees for officers of the Council, and 
for menbers-at-large of the Executive Committee, to be voted 



- 4 - 



429 



upon at the annual meeting. Such Committee shall file the 
names of their nominees with the Secretary at least fifteen 
(15) days before the date of the meeting. In addition, any 
nine (9) members/ by notice in writing filed with the 
Secretary at least five (5) days before the date of the 
meeting, may nominate candidates for officers of the Council 
and for members-at-large of the Executive Committee. The 
members shall be entitled to vote for any candidate named by 
either on^ of the above methods at such meeting. The can- 
didate receiving a simple majority of votes cast for his 
office shall be declared elected. 

ARTICLE VII 
Annual Meeting 
The annual meeting of the Council shall be held on the 
fourth Tuesday in May of each year or at such other time as 
may be selected by the Executive Committee, The Secretary, 
shall mail each member a notice of the meeting at least ten 
(10) days prior to the date hereof. 

ARTICLE VIII 
Executive Committee Meetings 
Meetings of the Executive Committee may be called by the 
President at his discretion, or when requested so to do by 
three (3) members of the Committee. The Executive Committee 



- 5 - 



430 



shall establish rules of procedure and practice for its 
meetings, subject to approval of, or amendment by, the 
Council. 

• . ARTICLE IX 
Committees 
The President of the Council, with the advice and con- 
sent of the Executive Committee, shall have the power to 
appoint committees on. programs, membership, ethics, coopera- 
tion, education, legislation and such other committees as he 
shall deem advisable to further the interests of the Council 
and its members; and to delegate to such committees such 
power and authority as the Executive Committee shall deem 
advisable. 

■ . . .. ARTICLE X 

Program Meetings 
Meetings for the furtherance of the purposes o.^ this 
association may be called by the Executive Committee at 
stated times, or from time to time in its discretion. The 
program of such meetings shall be arranged by the Executive 
Committee and the Program Committee- 



6 - 



431 



ARTICLE XI 
Duties of Officers 

The President shall preside at all meetings of the 
Council and the Executive Conunittee, and perform the duties 
herein set out. 

The Vice President shall perform the duties of the 
President in the absence of the President. 

The Secretary shall keep a record of the proceedings of 
all meetings of the Council and the Executive Committee, and 
he shall be responsible for maintaining a current membership 
roll and for the mailing of notice of meetings and other 
communications to such members. 

The Treasurer shall have custody of all funds and pro- 
perty of the Council and shall deposit all funds of the 
Council in the name of the Council in a bank or trust com- 
pany located in Memphis, Tennessee. All withdrawals of such 
funds shall be on checks or orders signed by him or by the 
President. He shall prepare and submit a statement of the 
financial condition of the Council at the annual meeting and 
at such times and in such manner as the Executive Committee 
may require. 



- 7 - 



432 



ARTICLE XII 
Expenses and Dues 
The expenses of the Council shall be provided for, by 
annual dues of Ninety ($90.00) Dollars for each member, 
payable in advance on or before the September meeting in 
each year. Annual dues may be increased by the majority of 
the members at a meeting duly called with at least ten (10) 
days prior written notice of the proposed increase. 

ARTICLE XIII 
Advertisement 
No members of this association shall use his membership 
herein in any form of advertisement of solicitation of busi- 
ness. 

ARTICLE XIV 
Revocation of Membership 
Any member who shall have been absent from two (2) con- 
secutive called meetings of the Council, or shall have 
failed to pay his dues at the time and in the amount 
prescribed by these Bylaws / as from time to time amended, 
shall have his name referred to the Executive Committee by 
the Secretary. The Executive Committee, in its sole discre- 
tion, may direct that such member be dropped from the roll 



- 8 ~ 



433 



of this Council, in which event he shall be so notified in 
writing by the Secretary. Any such member who has been 
dropped from the roll of the Council by action of the 
Executive Committee shall not be eligible for membership in 
thi^ Council for a period of at least three (3) years 
thereafter. 

ARTICLE XV 

Amendments 
Upon at least ten (10) days written notice setting out 
the proposed "amendment , these Bylaws may be amended at any 
annual or called meeting of the Council by a vote of two- 
thirds (2/3) of the membership present. 

ARTICLE XVI 
Guests 
Provided the inviting member pays the meal cost -as 
established by the Executive Committee for each guest, smy 
member of the Council will be permitted to invite guests of 
his or her choosing, provided he or she does not bring the 
same guest to more than two (2) meetings in any one (1) 
fiscal year. 

ARTICLE XVII 
The corporate fiscal year shall be June 1 through May 31. 

Revised: June, 1986 

- 9 - 



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IN TllK CIRCUIT COURT Of TENNESSEE 
FOR THE FIFTEENTH JUDICIAI, CIRCUIT AT MEMPHIS 



RITA HAUN and KENNETH IIAUN, 
Individually and as wife 
2nd Husband, 



VS. 

JOHN FREEMAN, Superintendent 
of the City of Memphis Board 
of Education, and THE CITY OF 
MEMPHIS BOARD OF EDUCATION, 

Defendants. 



NO. 82<01 T.D. 



SUPPLEMENT TO 
ANSWER 15 ON 
PAGE 9 OF 
QUESTIONNAIRE) 



EXHIBIT 



This case involves the tragic situation of a kindergarten 
teacher at the A. B. Hill Elementary School being raped in her 
classroom by an unknown adult assailant shortly after she had dis- 
missed her class on March 31, 1977. The teacher and her husband 
(hereinafter collectively referred to as "plaintiff") have sued the 
Board of Education,* essentially claiming that the Board was negli- 
gent in failing to provide her with a safe place to work. More 
specifically, she claims that she was assigned by the school's 
principal to a relatively isolated classroom on the first floor of 
the original school building, rather than to another available 
classroom that was also in the original building but closer to the 
other three kindergarten classrooms in the adjacent newer building 
on the school campus. Plaintiff believes that the assault in ques- 
tion would not have occurred if she had been assigned to the other 
classroom, and contends that this alleged misassignment was the 
proximate legal cause of her injuries. 

Plaintiff's action is subject to and controlled by the 
Tennessee Governmental Tort Liability Act, T.C.A. 29-20-101 et seq. 
This Act allows actions against governmental entities for injuries 
proximately caused by a negligent act or omission of any employee 
within the scope of his employment, with certain enumerated 



'The Complaint as Co co-ilef endant 
dismissed by Order dated May 13, 1980 



Remainder of this Exhibit is 
included in the full sets of this 
Questionnaire 



446 



Volum XLVI, Number 3 

September IS, 1973 
(Reg. U. S. Pot. Office) 

INTERNATIONAL 

V wholly disapprove of what you say but will deFend to the deoth your right to soy it. -Voltaire. 




It Is Very Important That Farmers 
Deliver Every Bale On Contract 



RECENT PRESS RELEASES from the depart- 
ment of agriculture indicate that 122,000 bales 
of cotton had been sold for export during the 
19T2-T3 marketing year but were undelivered as of 
Aug-ust 10, 1973. It was also reported that another 
6,100,000 bales have been sold for e.xport during 
the 1973-74 marketing year (August 1 to July 
31) and that 1.600,000 bales have been booked for 
v;:--;-- durir.-: tls^ 1074-7-") — --.■'retir.g yea;-. 

i;.~ort3 :r.j: y?ar were a;c,-.; .'i.-iCO.CO'.^ bales 
cjid ii the preceding season. 1071-72, were 3,229,- 
000 bales. 

Tnus, we face final export sales this season of 
around 7,000,000 bales, the trade believes. Can this 
much cotton be handled through American ports? 
This is the big question. 

■ff we do ship 7.000,000 and our own mills con- 
sume 7,500,000, this offtake of 14..=)00,000 bales 
will be about 1,.500.000 bales above the latest crop 
estimate of 12,938. -500, which report was issued 
this week by the USUA in Washington. 

It is nowestimated that we will have a carry- 
over of 3,.500.000 bales next Augi'st 1.. but if ex- 
ports do run as high as we have mted, it would 
apoear to us that these carryover predictions, will 
behalf a million bales too much. ,It is a good thing 
that we do have the caryover or U. S. mills would 
be in worse despair than they are now. And they 
are crvnng daily for export controls to be placed 
on further sales. 

Many in the trade now consider controls in- 
evitable due to the continuing heavy, unprecedent- 
ed sales. They may come so late that controls will 
be academic, for foreign buyers will h.ive filled 
tl-.eir needs, except for fill-in orders here and 
there as the season progresses. . 

As for U. S. mill consumption, it haj been 
steadilv downward, and the trend seems to con- 
tinue do^vnward whether the crop is larfrc or 
small. Last year, we had a big crop, yet total cot- 
ton consumption was only 7,471,000 running bale.s. 



This compares with 8,03 
ing the 1971-72 season 
1970-71 season. 

While U. S. mills u; 
uorl'l use is expandmg- 
dicate that the day may 



EXHIBIT 



S 



I 



farmer may be producing for foreign consumption 
mainly, instead of for U. S. consumption. 

IT IS VERY IMPORTANT to the future of the 
cotton industry that American farmers deliver 
every bale of cotton they have contracted to de- 
liver from every acre this year. The trade has sold 
cotton ahead to world and U. S. mills. 

True, the farmers might have received better 
prices if :hey had waited to sell their cotton, but 
there is nothing to be done now. The trade too' 
would have received better prices if the farmers 
had waited to sell. This is water over the dam. 

The farmers can recover some of the profits 
they might have made by selling ahead at higher 
prices in the 1974-75 season. But, we would recom- 
mend that farmers move slowly, sell only part of 
their intended plantings and hold the remainder of 
the acreage for later deals. This way, they can 
have their cake and eat it too. 

But for cottjn already contracted for this sea- 
son, the farmer must deliver if he wants to do 
business with buyers in the future. The farmer 
must help insure that merchants will ge the cot- 
ton they have contracted for — for if the trade 
doesn't receive every bale for every acre they have 
bought, thre won't be many firms remaining to do 
business with in the future. It is that simple. 

The entire cotton industry needs every member 
it now has, and, in fact, could use some new buyers 
as well as new producers in 1974 — for it appears 
that we will need at least another million acres. 

Thus, H. Molsen & Company's landmark de- 
cision against 15 Tennessee farmers who failed to 
deliver two seasons ago takes on added importance 
now. It was the first federal case, and it shows 
that the farmer must deliver under the law, 
whether he wants to or not. Most farmers are 
delivering — and most of them want to deliver. 
They know the merchant must deliver to the mill 
or the merchant will be used. 

There have been only 142,800 bales ginned in 
the Lower RiO Grande Valley to September 10 but 
reports from the Valley say that the farmers are 
delivering. They are living up to their word 
whether they like to or not. They also seem to be 
delivering sati.sfactonly in the Corpus Christi and 



^ (SUPPLE>!ENr TO ANSWER 18 (CASE 5) Oti PAGE 18 OF QUESTIONNAIRE) THE COTTON DIGEST 



447 



In Memphis, Tennessee: 



Molsen Wins Landmark Decision Against Farmers 
When Farmers Renege On Acreage Contract 



IN A LANDMARK DECISION. H. 
Molsen & Company, Dallas cotton 
merchants, won a S2l,T50 jury 
verdict this week (September 4) in a 
Memphis, Tennessee, federal district 
court against 15 farmers and a cotton 
jrinner-producer. 

The jury ruled that the West 
Tennessee farmers and dinners were 
in breach of contract. 

The farmers were charged with 
breaking contracts for the sale of 
their cotton in order to sell on the 
open, market when the prices were 
higher later in the harvesting period. 

The case was file<i in April 1972 
and covered transactions on the 1971 
crop. The farmers were found guilty 
of diverting bales that were on 
contract- 

The jury awarded the full amount 
per bale asked by the Dallas cotton 
shipping firm, which was the dif- 
ference in contract price and market 
price at the time the firm learned of 
the diversion which forced them to 
cover the loss in -the open market. 

The amount awarded the Molsen 
firm was $50 per bale, which was the 
difference between the 23 cents per 
pound average contract price and 33 
cents per pound average cover price. 

The Hefendants were George Flow- 
ers & bon, Covington Tennessee, and 
Wm. B. Cowan, Cowan Brothers, 
producers and ginners from La 
Grange, Tennessee. 

Individual farmers whom the federal 
judgement were delivered against 
were Bynum Leajhenvood, Leona 
Powell, R. D. Daniel. Franklin Farms. 
William B. Cowan, Jr.. Clyce Weath- 
erly, J. J. Smith, B. C. Yoger. Sr.. 
Paul Gatlin, O. D. Maclin. Robert 
Sparkman, William Gaugh, Joe 
Harvey, Franklin and C. W. Mid- 
dlecoff. 

Molsen's attorney. Ronald Gilman 
of Memphis, said the case was the 
first cotton contract default claim 
presented to a jury in Tennessee. It 
is believed to be the first cotton 
contract case in federal court, al- 
though several other cases have been 
heard in state courts in Texas and 
California. The case was tried before 
U. S. District Judge Harrv W. Will- 
ford. 

Mr. Gilman said the 15 farmers 
contracted to sell their cotton at an 
average price of 23 cents, but 
testimony showed they actually 
delivered only 659 hales from the 
1.985 acres under contract, selling 
much of the remainer of the produc- 
tion at prices ranging up to 33 cents 
a pound. 

In the Molsen case, Mr. Gilman said 
the West Tenneaseee farmers contract- 
ed in 1971 to sell all of their 1971 
cotton crops through George Flowers, 
III, a Covington. Tennessee, cotton 
merchant. 

Mr. Flowers, in turn contracted to 
sell the cotton to Molsen through the 



Texas firm's Memphis agent. Jini 
Spurlock of the Delta Cotton Com- 
pany, Mr. Gilman said. 

Heinz Molsen. Jr.. of Dallas said 
this week in ftlemphis that he felt 
his firm had received a landmark 
decision in the entire industry as it 
was carried to a federal jury vealict 
— which may be the first such case 
in the nation. It was tried in federal 
court due to the fact the principles 
resided in different states. 

Mr. Molsen said that *'I feel the 
verdict should have a substantial 
bearing on all cotton contract to that 
time, and it has a very special bear- 
ing on this year's contracts, with 
regard to market prices moving 
upwards after the contracts were ex- 
ecuted. 



"I feel especiallv happy about this 
decision since last year we paid for 
large volumes of contracted cotton 
where the price was much lower at 
hai'vest time than when the contracts 
were initially executed. This means- 
that the farmers receivetl $2,000,000 
to $3,000,000 additional by contract- 
ing prior to the season than they 
would have received if they had sold 
in the market during har\'est oeriod. . 

The jury found that ilr. Flowers 
was merely acting as agent for the" 
IG farmers, and he was therefore 
not personally liable for the damages. 
The jury also found that it was proven 
that 435 bales had been diverted, and 
they awarded S50 per bale damage,, 
or a total of $21,750. in the historic 
decision. 



WASJilNGTON Nlp^S 




etine in Dallas. Texas on 
August 24, 1973. the ex- 
ulive Committee of the National 
'Cotton Council and the Proilucer 
Steering Committee met at the 
Producer Steerine Committee m... 
request of the American Tex 
Manufacturers Institute 
the current cotton supply situatji 
light of the strong export 
spiraling prices, and the/general 
problems concerning the p^sent cot- 
ton textile situation. 

No determinations^ 
this meeting; ho\\*©^r, a force was 
appointed to iliscu^ alternatives that 
the Council dilators could consi<ler 
at the Boar^Meeting in Memphis 
next week^/The task force \\iU be 
headed bj/C. R. Sayre of Greenwood. 
I cooperative represent- 
other members are: \V. D. 
1, III. of Gastonia. North 
irolina. President of Cotton Council 
International, former president of 
.\CSA and a n\erchant ilirertor of the 
National Cotton Council; Gordon M 
Cahe of Greenville. South Carolin 
Vice President of J. P. Stevens ar 
a spinner director of the N' 
Cotton Council; an 

of Crosbyton, Texas, past preiiident 
of the Plains Cotton Grover 

. ' of tl 
^tional Cotton Council. 
It is understood that^e task fo 
ilabi 
ig the operi^fon of Sect 



of the ARric>inural Adjustment Act 
of 1933 (S^urday authority avail- 
able for reporting raw upland cotton), 
licensinir of cotton exports, export 
controiv and some questions concem- 
ingy!Tie trading of cotton futures on 
thi^New York Cotton Exchange. 
/The merchant directors to the 
'National Cotton Council are W. D. 
Lawson, 111; William Tharp of Las 
Cnices, New Mexico; A. Starke 
Taylor. Jr. of Dallas. Texas; Rudi E. 
Scheldt and W. B. Dunavant, Jr. of 
Memphis. Tennessee. 

Sec. r.utz Critizes .\TJ1I 

Reacting to intense pressur 
nerated bv U. S. textile inte 
Secretary Butz was strongly/ritical 
of efforts to seek restriction^n U. S. 
cotton exports. Secretarv/Butz told 
the Washington Post>^the textile 
people asking for cj>fttrols are e.x- 
actly like the wheat/fiUers: they don't 
know how to ope/Ste in a free price 
cononiy. They >5y: 'We want you to 
protect our sjirpply,' when they really 
&nt lower prices for raw- 
product.'/' 

Tlie yrt-iry further related that: 

"isp language. Butz said that 

nerican textile manufacturers 

opeal for export controls on the 

; of assuring cheaper prices for 

consumers, he will suggest the_y 

propose removal of 'volant 

import quotas on competing 

from the Far East. 

The Department, in a for, 

ment issued yesterday b/' Assists 

Secretary Carroll G. Bryrhthaver, said 

there would be no ex/ftrt controls 

cotton "short of y^me unforeseen 

disaster to this yorfr's growing crops." 



SEPTEMBER 8, 1973 



448 



MEALEY'S LITIGATION REPORTS 

INSURANCE INSOLVENCY 

TWICE MONTHLY BY MEALEY PUBUCATIONS. INC. • P.O. BOX 446 « WAYNE. PA 19087-0446 • (610) 688-6566 
Volume 7. Issue #18 February 22. 1996 

FIDUCIARY DUTY 

No Breach Of Duty In Purchase, Termination Of Mutual Benefit GIC 

Michigan federal judge rules in action brought by former employees of Abitibi-Price 3 

(PREFERENTIAL TRANSFER 
Avoidance Period For Preferential Transfers Only For Liquidations 
Tennessee court: transfer made within four months of rehabilitation petition not voidable 5 

ASSOCIATION LIABILITY 

Missouri Association Liable For Damages, Attorney Fees 

Court finds statutory coverage limit does not apply to costs of defending insured 6 

Workers' compensation carrier may not enforce lien against Delaware association 8 

JURISDICTION 

Deference To Centaur Illinois Rehabilitation Proceedings Appropriate 

However. California appeals court provides for stay instead of dismissal 9 

Appealability Of Remand At Issue Before High Court 

Oral arguments in Mission, Allstate dispute center on type of review, finality 11 

PREEMPTION 

Second Circuit Amends Ruling On Preemption 

Refers to ruling applying FAA in new footnote; motions call rulings inconsistent 13 

SETTLEMENT 

Canadian, U.S. Estates Agree To Separate Confederation Life Actions 

Uruier agreement in principle, U.S. policyholders will look to U.S. proceeding for relief 14 

RULINGS OF NOTE 

Policyholder Did Not Breach Duty To Settle 

Second Circuit also affirms New York district court's denial of attorneys' fees 15 

Massachusetts high court to consider realm of owned-property clause 16 

INDUSTRY NEWS 

CIGNA Restructuring Approved By Pennsylvania Corrunissioner 

Request for stay peruling review of petition for appeal denied Feb. 13 17 

LITIGATION NOTES 

Third Circuit Denies Rehearing In Unisys Case 

Ruling vacated order which granted summary judgment to Unisys .... 

California court of appeal publishes Mission ruling 

Kentucky court releases decision on standing to appeal for publicati 

© COPYRIGHT 1996 MEALEY PUBLICATIONS. INC. ALL RIGHTS RESERVED ^-J Publiconon ovoiloble on disk 

REPRODUCTION STRICTLY PROHIBrTED WITHOUT WRITTEN PERMISSION ■■ '~°' '"°' ***-*5** 

(SUPPLEMENT TO ANSWEK 18 (CASE 6) ON PAGE 19 OF QUESTIONNAIRE) 




449 



MEALEY'S LITIGATION REPORTS 

INSURANCE INSOLVENCY 

Febnjaiy 22. I9i3 



are represented by Stp«(n Bompey and Ira R05; 
stein of Orricjj/Herrington & SutcJ, 
New York aiiQ Charles S. Mishkin^/^ Miller, 
Canfiek^Taddock cS: Stone in^^Brand Rapids, 
Mi^Jt: Counsel representing^^AP are Frances 
Menton Jr. and Marv,i3erdes of Willkie. Eafr 
& Gallagher in Uey/^oik and Thomas f'^'^Ko- 
ernke of Boyde;><waddell. Timmonx^ Dilley 
in Grand Rapfds. Mich. 



Avoidance Period For 
Preferential Transfers 
Only For Liquidations, 
Tennessee Court Holds 



NASHVILLE, Tenn. — The phrase "the peti- 
tion" in the portion of the Tennessee statute pro- 
viding a four-month avoidance period for pref- 
erential transfers refers only to petitions for liq- 
uidation, a state appeals court held Feb. 7. 

Therefore, an $800,000 transfer made within four 
months of a petition for rehabilitation, but more 
than seven months before a petition for liquida- 
tion, is not a voidable preference, according to 
the court C United Physicians Insurance Risk Re- 
tention Group, el al. v. United American Bank 
of Memphis . No. 01-A-01-9503-CH-00096, Tenn. 
Ct. of App., Middle Sec). 

(Text of Opinion in Section C. Mealey's Doc- 
ument #10-960222-103.) 

The appeals court thus affirmed the dismissal of 
a petition of the Tennessee Commissioner of 
Commerce and Insurance as liquidator of Unit- 
ed Physicians Insurance Risk Retention Group 
(UPI) to avoid an $800,000 transfer made to 
United American Bank of Memphis to pay off 
an outstanding bank loan. 

UPI was a captive insurance company established 
in 1989 by United Physicians Association Inc. 
to provide medical malpractice insurance to its 
members. Statuary capitalization requirements 
were satisfied first by $1 million in letters of 



credit. Two years later. United Physicians bor- 
rowed $1 million from United American Bank 
of Memphis and deposited the funds with the 
insurance department to replace the letters of 
credit. Subsequently, the balance of the loan was 
reduced to $800,000. 

The transfer occurred in December 1991 as part 
of a reinsurance transaction, according to the court. 
United Physicians caused $2.9 million to be paid 
from the "L.I. O.N. Trust Account for U.P.I." to 
Anchorage Fire and Casualty Insurance Co. 
Anchorage used part of the funds to retire cer- 
tain UPI debts, including the $800,000 bank loan. 
The court noted that the parties do not agree 
that the funds used to pay off the loan were UPI's 
funds and the court assumed the truth of the 
allegation for purposes of the motion to dismiss. 

According to the court, UPI's 1991 annua! state- 
ment showed it to be insolvent by $764,102. UPI 
was placed under administrative supervision in 
March 1992, ordered into rehabilitation in April 
1992 and ordered into liquidation in July 1992. 

In June 1994 the commissioner filed a complaint 
seeking to avoid Anchorage's payment to the bank 
as a voidable preference. The bank successfully 
moved to dismiss the complaint because the pay- 
ment did not occur within four months of the 
filing of the petition for liquidation as set out in 
Tenn. Code Ann. Section 56-9-3 17(a)(2)(B) which 
provides that a "preference may be avoided by 
the liquidator if . . . (tjhe transfer was made 
within four (4) months before the filing of the 
petition," the court noted. 

Therefore, the court held, the question of whether 
a preferential transfer entered into more than four 
months before the filing of the petition for liq- 
uidation is voidable when made within four 
months before the filing of a rehabilitation peti- 
tion centers on what is meant by "petition." 

In ruling, the court considered the phrase "the 
petition" in three contexts. 

In the context of the language of the section it- 
self, the coun held that the term "preference" is 
"framed chiefly in the context of a liquidation 
proceeding" and as stated in Section 56-9- 
317(a)(2) "can only refer to a petition for liqui- 
dation." 



O COPYRICKT 19% MEALEY PUBLICATIONS. INC . WAYNE. PA 



450 



February 22. 1996 



MEALEY'S LITIGATION REPORTS 

INSURANCE INSOLVENCY 



Vol. 7. #18 



Next, considering the phrase in the context of 
the Insurers Rehabilitation and Liquidation Act, 
the court found that the act's provisions allow- 
ing both liquidators and rehabilitators to set aside 
fraudulent conveyances "demonstrate that 
the legislature understood the difference be- 
tween rehabilitation and liquidation proceedings 
and that it intentionally drafted Tenn. Code 
Ann. § 56-9-3 17(a)(2)(B) to exclude petitions for 
rehabilitation." 

Finally, considering the term in the context of 
the purposes of the act, the coun noted that the 
purpose of rehabilitation is to preserve a compa- 
ny as an ongoing business. "Since officer and 
employees of on-going insurance companies do 
not have the authority to avoid preferences, re- 
habilitators likewise do not have this authority," 
the court held. 

Further, the coun noted, "A preferential trans- 
action is one that circumvents the statutory pri- 
ority provisions thereby permitting a creditor to 
obtain more than its fair share of an insurance 
company's estate upon dissolution. Since cred- 
itors of an on-going insurance company have no 
claims against the insurance company's "estate,' 
rehabilitators need not concern themselves with 
preferences or with the priority of creditors' 
claims." Therefore, the court found, "preferen- 
tial transfers, by their very nature, have no rel- 
evance in a rehabilitation proceeding." 

Concluding, the coun noted that the first men- 
tion of the power to avoid preferences appears 
in the delineation of a liquidator's duties. "It is 
only in the context of a liquidation proceeding 
that the avoidance of preferences makes sense," 
the court held. 

Judge William C. Koch wrote the court's opin- 
ion, joined by Judges Samuel L. Lewis and Ben 
H. Camrell. 

The liquidator is represented by William B. 
Hubbard of Weed. Hubbard, Berry & Doughty 
in Nashville. Tenn. Counsel for the bank are 
Ronald Lee Oilman of Farris. Mathews, Oilman, 
Branan & Hellen of Memphis, Tenn., and John 
Knox Walkup of Gullett. Sanford, Robinson & 
Manin in Nashville. ■ 




Missouri Association 
Liable For Damages, 
Attornefv Fees 



LOUIS, Mo. — The Missouri Insura 
Guaranty Association (MIGA) is liable fgrf'^actu- 
al damages up to the statutory cov^t'age limit 
plus attorney fees incurred by an >fisured of an 
insolvent carrier in defending>« discrimination 
claim, a state appeals courj/nere has held, af- 
firming a summary judgment ( Missouri Property 
& Casualty Insuranca/Ciuarantv Association v. 
Petrolite Corp . N</^68061. Mo Ct nf App 
Eastern Dist). 

(Text of Of>inion in Section D. Mealey's Doc- 
ument>n0-960222-104.) 

fie court held that the policy of the insolvent^ 
insurer provided coverage for an age discrin 
nation claim, that MIGA was obligated tQ/-pro- 
vide a defense and that MIGA's statutory^over- 
age limit did not apply to attorney fj« incurred 
in defending the insured after MKjA withdrev 
its defense in the employment d>«crimination case. 

Defendant Petrolite Corp^was insured under a 
commercial catastroctie policy issued by now- 
insolvent Integrity^surance Co. providing cov- 
erage of $5 nuKion per occurrence, $5 million 
annual aggreg^e, with a retained limit of $10,000. 

■lying Litigation 

1 October 1985, former Petrolite employee Wil- 
liam M. Zachary filed a discrimination cha^ 
with the Equal Employment Opportunity >€^m- 
mission (EEOC) claiming he was dischjtfged by 
Petrolite because of his race. The EEDC filed a 
complaint against Petrolite in September 1< 
in the U.S. District Court fpt the District of 
California. 

MIGA provided Petperfite with a defense in the 
place of the insolv^ insurer and settled by paying 
Zachary $ll,Op«r MIGA then asked Petrolite to 
pay it the S^t),000 retained limit under the In- 
tegrity KiJficy, but Petrolite refused. 



«a COPYRIGHT 1996 MEAL£y PUBLICATIONS. INC . WAYNE. PA 



451 



FINANCIAL DISCLOSURE REPORT 

Nomination Report 



Fepon Requirtd by the Elttici 
Reform Act o/ 1989. Pub L No. 
101194. November 30. 1989 
(} US.C. App. 4 . Sec. I0III2) 



1. Penon Reporllni (Lasi mme. flrsl. miiUk imiial) 

Gllman, Ronald L. 



2. Court or Orfuilxalloii 

U. S. Court of Appeals, 6 CIr. 



3. Date of Report 

07/17/1997 



lAnicle III Judges indicale acnve or 
senior aalus: magistrate judges indicale 
fiilt- or pan-time) 



U. S. Circuit Judge Nominee 



5. Report Type (check type) 
X. Nomination. Dace 07/16/1997 
Initial Annual Final 



i. Reporting Period 
01/01/1996 

06/30/1997 



7. Chajnben or OfTice Address 

One Commerce Square #2000 
Memphis, TN. 38103 



8. On the basis of the in/ormatlon contained in this Report and any 
modirications pertaining thereto, it is in my opinion, in compUanci 
with applicable laws and regulations. 



Reviewing Ofllcer 



DiiPORTAyr NOTES: The instruaions accompanying this form must be followed. Complete alt parrs, 
checking the NONE bos for each seaion where you have no reportable informalion. Sign on the tost page. 



I. POSITIONS Ottporting individual only: 

□ POSITION 

NONE (No reportable posjiions.) 

Member 

^ Vice President 

' Board Member 



e pp. 9- 1 i of Instructions) 



NAME OF ORGANIZATION / ENTITY 



Fanis, Mathews, Oilman, Branan, & Hellen, P.L.C 
Association of Attorney-Mediators, West Tn. Chap 
Boy Scouts of America, Chickasaw Council 



n. AGREEMENTS (Reporting individual only: see pp. 14-n of Inaruaions.) 

DATE PARTIES A.ND TERMS 



, NONE (No rcporuble agreements.) 

^ 1997 



Farrls. Mathews, et al - buy out of partnership interest within 
90 days of withdrawal; 401 (k) plan Interest will be transferred 
to an IRA 



III. NON-INVESTMENT INCOME (Reporting individual and spouse: see pp. 18-25 of Instructions.) 



DATE 



PARTIES AND TERMS 



NONE (No reportable non-investment i 



1995 



2 1996 



Farris. Mathews, et al - member 



Farris. Mathews, et al - member 



University of Memphis School of Law - adjunct prof 
Farris, Mathews, et al - member 



5 June 97 University of Memphis School of Law - adjunct prof 



GROSS INCOME 

(yours, not spouse's) 



$ 251,597.00 



EXHIBIT 



1 1 



$ 231,635.00 



S 1,950.00 



$ 86,640.00 
$ 1,950 00 



452 



FINANCUL DISCLOSURE REPORT 



Name of Penon Repomng 

Gilman, Ronald L. 



Date of Report 

07/17/1997 



IV. REIMBURSEMENTS and GIFTS - crmspotunon. lodging, food, enwiuinmenl. 

ilnctiulei thuse to spouse and dependent children; use Ihe poremheticats '(S) ' and '(DQ ' to indicate repanable reimbunetnents and gifts received by spouse 
and dependent children, respectively. See pp. 26-19 of Instructions ) 



SOURCE 

NONE (No such rcporuble reimbuRcmcnu or gifts) 



DESCRimON 



Exempt 



V. OTHER GIFTS 



(Includes those to spouse and dependent children; 
respectively. See pp. 30-33 of Instructions.) 



SOURCE 
NONE (No such reportable gifts) 



- the parentheticals 75) ' and '(DO * to indicate other gifts received by spouse and dependent children, 

DESCRIFnON VALUE 



Exempt 



VI. LI.\BILITIES 

(Includes those of spouse and dependent children: indicate where applicable, person responsible for UabiUry by using the parenthetical '(Si' for separate 
liability of the spouse. ' (J)' for joint liability of reporting ituUvidual and spouse, and '(DQ'for Uabiliry of a dependent child. See pp. 34-36 of Instruaions.) 



CREDITOR 

NONE (No reportable liabilities) 



DESCRIPTION 



VALUE CODE* 



' VALCODES:I-J15.(»Uorless K-JI5.0OI-J5O.0UO L-tJO.OOl 10 JKM.OOO M-$IUO.001I250.(X)0 N -KSO.UOl $500,000 

0-J500.00I-$I.OOO.OOO PI-JI.OOO.OOIJS.OOO.OOO P2-t5.OUO.OOI-J25.0OO.0OO P3-J23,0OO.0OII5O.OOO,U0O P4-J5U.000.OOI or more 



453 



Name of Person Reponiag 

FINANCIAL DISCLOSURE REPORT I Q^^"^"- Ronald L. 



Date of Report 
07/17/1997 



vn. 


- income, value, transaaions (Includes those of spouse and 
Page 1 INVESTMENTS and TRUSTS ilependem children. See pp. 37-54 of instructions.) 


A. 
Docriplioa of Asseu 

Iruliaae wlure appUcablt. owner af 
Ifu asset by using the parenthetical 
'Ui' /or joint owmnhtp of reporting 
indivtdtult onti spcuse. '(S)' for lep- 
erase ownership try spouse. 'IDQ ' 
for ownership by dependent chtUt. 

Place '(X) ■ after each asset 
aeniplfrom prior itisclosure. 


B 

Income 

during 

reporring 

period 


C. 

Grou value 

•lend of 

reponing 

period 


D. 

TraiuacUoiu dunng reponing period 


(1) 

Ajm. 

Code 

(A- 

H) 


(2) 
Type 
(e.g.. 
dividend. 

interest) 


(1) \m 

Viluei Vilue 
Code i Medwd 
(J-P) Code 
(Q-W) 


(1) 

Type 
(e.g., 
buy, sell, 
merger, 
redemp- 
tion) 


ir not eiempi from disclosure 


(2) 
Dale: 
Month- 
Day 


(3) 

Value 
Code 
(J-P) 


(4) 
Gain 
Code 
(A-H) 


(5) 

Identity of 
buyer/seller 
(if pnvate 
transaction) 




NONE (no repomble incomcasseo. oc 
transactions) 






1 












1 






i 


Exempc 










1 ta. cent. Infl Disc. (J) 


A 


Dividend 


K 1 T 
1 












3 Am. Cone. Infl Disc. «01(k) 


C 


Dividend 


M T 












4 An. Cent. Pr. Capital Rss. (J) 


C 


Dividend 
















S Evergreen Tax Kx (J) 


B 


Dividend 


K 


T 










« Fidelity Divsfd. Infl (J> 


A 


Dividend 


H 


T 












7 Fidelity Divsfd. Infl IRA 


A 


Dividend 


L 


T 












8 Fidelity Divsfd. Infl IRA (SI 


A 


Dividend 


K 


T 












9 Fidelity Real Estate (Jl 


D 


Dividend 


H 


T 












10 Fidelity Sel. Am. Gold (J) 


* 


Dividend 
















11 Fidelity Sel. Natural Gas IRA 


B 


Dividend 
















12 Fidelity Sel. Natural Gas IRA (S) 


B 


Dividend 
















U Fidelity Sel. Prec. Metals (J) 


A 


Dividend 
















14 Fidelity Sel. Prec. Metals IRA 


A 


Dividend 
















15 Fidelity Sel. Prec. Metals IRA 
(SI 


A 


Dividend 


1 












IS Fidelity SE Asia (Jl 


A 


Dividend 














n Fidelity Spar. Muni M. (Jl 


A 


Dividend 
















lire/Gain CodesA-Jl.OOO or less B-1 1,00 (-$2,500 C-J2.501-$5.0<X) D-J5.00( -J 15.000 E.$I5.001-$50.000 
(Col. BI.D4) F-JSO.Ofll-JlOO.OOO G-J100.00I-JI,000.000 Ml-J1.00O.0OI-J5.0OO,0Ofl H2-J5.000.001 ormore 


2ValCo<la: J-$1S,OOC or less K-J 15.001 -$30,000 L-$50.001-$100.000 M-$100,OOI-$250.000 N-J250.001 -$500,000 
(Col.Cl.D31 C>-$500.001-$ 1,000.000 Pl-$l,000,00l-$5.000.000 P2-$S,0OO.0Ol -$25,000,000 P]-$25.0OO,0OI-$5O.OOO.0OO P4-$50.000,001 or more 


] Val Mill Ca<tes: Q-Appraisal R-Cosi (real ellale only) S-Assessmenl T-Cuh/Markel 
(Col. C2) U-Uook Vilue V-Olher W-EslimaleJ 



454 



Name of Person Reporting 
FINANCIAL DISCLOSURE REPORT | oilman, Ronald L. 



>. value, iransaaions (includes those of spouse and 



I Dale of Repon 
I 07/17/1997 



^^ ^^ - income, value, transaatons (includes those of spouse 

VII, Page 2 INVESTMENTS and TRUSTS dependent children. See pp. 37-54 of Instntaions.) 



A. 
Descrtpdon of Asseu 

Indicose where applicable, owner of 
the asset by using the parenlheticat 
'(J)' for joint ownership of reporting 
individual and spouse. ' IS} ' for lep- 
erase owntrshtp by spouse. 'IDQ' 
for ownership by dependent child. 

Place ■«)• after each asset 
ejiemptfrom prior disclosure. 


B. 

Income 
during 
reponing 
penod 


C. 

Gross value 

at end of 

reporting 

penod 


D 

Transactions during reporting period 


(I) 

Amt, 

Code 

(A- 

H) 


(2) 

Type 

(e.g,. 

dividend. 

rem or 

interest) 


(1) 

Value 
Code 
(J-P) 


(2) 

Value 

Method 

Code 

((3-W) 


(1) 

Type 

(e.g.. 

buy. sell. 

merger, 

redemp- 

uon) 


If not exempt from disclosure 


(2) 
Date: 
Month- 
Day 


(3) 

Value 
Code 
(J-P) 


(4) 
Gain 
Code 
(A-H) 


(5) 

Identity of 
buyer/seller 
(if private 
transaction) 


NONE (no reporable income.isseB. or 
transactions) 




















la MPS Cash Res. 401 (kl 


A 


Dividend 


1 












19 MFS Gold & Nat;. Rea. 401(kl 


A 


Dividend 
















20 Janus Overseas (J) 


A Dividend 


L 1 T 












21 Lindner Bulwark (J) 


C Dividend 


M 1 T 












22 R-S ContLrarian (J) 


D 


Dividend 


N 


T 












23 T. Rowe Price Muni. M. (J) 


A 


Dividend 
















24 Vanguard Energy (J) 


B 


Dividend 
















25 Vanguard Gold & P. M. (J) 


B iDividend 

1 














26 Vanguard Inc'l Gro. (J) 


A 


Dividend | M 1 T 

1 1 












27 Farris, Mathews, ec al 


B 


Interest 


K 1 

1 












28 Gulf Housing L.P. 


A 


Dividend 


L j W 












29 Locke Rd. Farms in Sh. Co. 


A 


Incereat 


j 












30 Pasture land in sh. Co. 


A 


Rent 


H 1 W 

1 












31 NBC (J accc.) 


A 


Intereat 1 J j T 












32Mort. note; C. Mednikow 


D 


Interest | l 


T 






























1 












Ilnc/OalnCodes :A-$l.000orkS5 B-$l.001J2.50O C-J2.5OI-J5.0OO D-I5.0O1-II5.0OO E-JIS.OOl-JSO.OOO 
(Col BI.D4) F-J50.00l-I100,000 G-1 100.001 -J 1.000.000 H 1 -J 1. 000,00 1-J5. 000.000 H2-J5.00O,0Ol oi more 


IValCodes: J-J 15.000 or less K-J 15,00 1 -$50,000 L-JSO,OOI -J 100,000 M-JIOO,001-I250.000 N-J250,0Ol-J50O,000 
(Col C1,D3) O-J500,001 -J 1.000,000 Pl-J1.000,001-J5,000,000 P2-J5,0OO,OOI-I25,0OO.OO0 P3-J25.000,001-J50.000,000 P4-J50,000,001 or more 


3 Val Mlh Codes Q-Appraisal R<oil (real eslale only) S-AsjessmenI Kash/Markcl 
(Col. C2) U-Dook Value V-Olher W-Eslimaled 



455 



Name of Person Reporting 
FINANCIAL DISCL OSURE REPORT] Gil man, Ronald L. 

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS. 

I NONE (No addittoul infomulion or explaniuoiu.) 



(Ifidicaie ptn of repon.) 



Due of Report 
07/17/1997 



FINANCIAL DISCLOSURE REPORT 



Name of Person Repotting 

Gilman, Ronald L. 



Date of Repon 
07/17/1997 



SECTION HEADING, (indicate part of report.) 

SECTION 1. POSITIONS (confd.) 

Li. Position Name of Organization/Entity 



4 Board Member 



Capital Case Resource Center of Tennessee ( 1 995) 



456 



FINANCUL DISCLOSURE REPORT 



Name of Person Reponing 

Gilman, Ronald L. 



Date of Repon 
07/17/1997 



IX. CERTIFICATION 

In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory Committee on 
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory 
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children 
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all the information given above (including information pertaining to my spouse and minor or dependent 
children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported 
was withheld because it met applicable statutory provisions permitting non-disclosure. 

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 'J.S.C. 7353 and Judicial 
Conference regulations. 



Signature 



.'^...di^^^.il. 



D.« ^/n/<^^ 



Note: 



Any individual who knowingly and wilfully falsifies or fails to file this report may be subject to civil 
and criminal sanctions (5 U.S.C. App. 4, Section 104). 



FILING INSTRUCTIONS 

Mail original and three additional copies to: 

Committee on Financial Disclosure 
Administrative OfFice of the United States Courts 
One Columbus Circle, N.E. 
Suite 2-JOI 
Washington, D.C. 20544 



457 



Ronald Lee Gllman 
BeCsy D. Gllman 



FINANCIAL STATEMENT 
NET WORTH 



June 30, 1997 



Provide a complete, cuirent financial net worth statement which itemizes in detail 
all assets (including bank accounts, real esute, securities, trusts, investments, and other financial 
holdings) all liabilities Cmcluding debts, mortgages, loans, and other financial obligations) of 
yourself, your spouse, and other immediate members of your household. 



j ASSETS 




LIABIUTIES 




Cuh oa bMoi ind ia buJu 




18, 


000 


Noiei paytbk to biola-ucurod 




- 




tJ4. Govemmtnt Mcuricia-idd 




- 




Nolo ptyibk to btcla-unseoBul 




- 




Uatd ttaaiaa-yU (chedulc 


1, 


788, 


000 


Note! pmyiblt to nltaya 




- 




Ualiiied $tasiaei-tdd (chcdule 




62, 


000 


Hotct payifale to otbm 




- 


1 


Accaonu uid notes reccivible: 




- 




Accounts lAd bills due 




- 


1 


Due from reltQvu and frieiids 




- 




Unpaid income tiz 






1 


Duc&om odiat 








Other unpaid tix and interest 




- 


: 


Doubtful 




- 




Real cstau martfa^es payable-tdd 
•diedule 




- 




Keil awe owTud-4dd idiedule 




387, 


000 


able 




- 




Rul awe mangigci teccivibU 




61, 


000 






- 




Aiitoi Uid other pmoail ptopeny 




I'l, 


noo 










Cuh vtJue-Iile insunncs 




39, 


300 










1 Other useu-ilemize: 
















Law firm buy-out value 




42, 


300 


































Xotll T^flWi'l'f^'** 

















Net Worth 


2 


,472, 


300 


Total AueU 


2 


,472 


,000 


Total UabiliQea and net wotth 


2 


,472, 


300 


CONTINCENT UABIUnES 








GENERAL INFORMAnON 








Xi eadorser, coouJur or punator 




25 


000 


Are any assets pledged (Add iched- 
ale.) 




no 




Oa leuei or conncu 




_ 




An you dcfodant in any toiu or lefal 
actioiu? 




no 




Lcgtl CUiflU 








Have you erer takes bjr.ltrtiptcy? 




no 




Proviiioo for paUnl Income Ttx 




- 












Other cpccuJ ilebl 


1 - 













EXHIBIT 



P ? 



458 



Ronald Lee Gilman and Betsy D. Gilman June 30, 1997 NET WORTH SCHEDULE 
Listed Securities 



American Century Mutual Fund 
Evergreen Mutual Fund 
Fidelity Mutual Funds 
Janus Mutual Fund 
Lindner Mutual Fund 
Robertson-Stephens Mutual Fund 
Vanguard Mutual Fund 



Total 



133,000 
43,000 
688,000 
60,000 
181,000 
487,000 
196,000 

1,788,000 



Unlisted Securities 
Gulf Housing Limited Partnership 



62,000 



Real Estate Owned 

Residence in Memphis, TN 

30 Acres in Shelby County, TN (undivided % interest) 



222,000 
165,000 



387,000 



459 



Sotomavo r Senate Questionnaire 



UNITED STATES SENATE 

COMMITTEE ON THE JUDICIARY 

OUESTIONNAIRE FOR JUDICIAL NOMINEES 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

Full name (include any foimer names used.) 

Sonia Sotomayor — October 1983 to the Present. 

Sonia Sotomayor de Noonan, Sonia Maria Sotomayor de Noonan, 
or Sonia Noonan, Married Names — August 1976 to October 1983. 
As pari of my divorce decree, I resumed my maiden name without my 
middle name. 

Sonia Maria Sotomayor — Birih to Marriage, August 1976. 

Address: List current place of residence and office address(es). 

RESIDENCE : OFFICE : 

New York, New York U.S. Courthouse 

500 Pearl Street, Room 1340 
New York, New York 10007 

Date and place of birth. 

June 25, 1954 

New York, New York 

Marital Status (include maiden name of wife, or husband's name). List spouse's 
occupation, employer's name and business address(es). 

Divorced since October 1983. Engaged to be married to Peter White, 
President of Commercial Residential and Industrial Construction 
Corporation, 656 Central Park Avenue, Yonkers, New York 10704, 



460 



Sotomavor Senate Questionnaire 

Education : List each college and law school you have attended, including dates of 
attendance, degrees received, and dates degrees were granted. 



SCHOOL 



DEGREE 



DATES 
ATTENDED 



GRADUATION 



Yale Law School 



Princeton 
University 



J.D. 



A.B., Summa 
Cum Laude 



1976-1979 
1972 - 1976 



June 1979 
June 1976 



Employment Record : List (by year) all business or professional corporations, companies, 
firms, or other enterprises, partnerships, institutions and organizations, nonprofit or 
otherwise, including firms, with which you were connected as an officer, director, 
partner, proprietor, or employee since graduation fi-om college. 







DATES OF 




ORGANIZATION 


ADDRESS 


ASSOCIATION 


POSITION 


United States District 


U.S. Courthouse 


10/92 to present 


Judge 


Court - Southern 


500 Pearl Street 






District of New York 


New York, NY 
10007 






Pavia & Harcourt 


600 Madison Ave. 


1/88 to 10/92 


Partner 




New York, NY 


4/84 to 12/87 


Associate 




10022 






New York County 


1 Hogan Place 


8/79 to 3/84 


Assistant 


District Attorney's 


New York, NY 




District Attorney in 


omce 


10013 




Trial Bureau 50 


Sotomayor & Associates 10 3rd Street 


1983-1986 


Counseling and 




Brooklyn, NY 




consulting work for 




11231 




family and friends 


Yale Law School 


127 Wail Street 


9/78 to 5/79 


Sales person 


Mimeo Room 


New Haven, CT 
06520 






Paul, Weiss, Rifkind 


1285 Avenue of the 


6/78 to 8/78 


Summer Associate 



Wharton & Garrison Americas 

New York, NY 10019 



461 



Sotomavo r Senate Questionnaire 



The Graduate, 
Professional Studen' 
Center 



306 York Street 
New Haven. CT 
06520 



9/77 to 5/78 



Sales person 



Office of the 
General Counsel, 
Yale University 

The Equitable Life 
Assurance Society 
of the United SUtes 



Woodbridge Hall 
New Haven, CT 
06520 

1285 Avenue of the 
Americas 
New York, NY 
10019 



6/77 to 9/77 



6/76 to 8/76 



Summer Intern 



Summer Clerk 



New York City 
Campaign Finance 



40 Rector Street 
New York, NY 
10006 



1988 to 10/92 



Member, 

Board of Directors 



State of New York 
Mortgage Agency 



260 Madison Avenue 
New York, NY 
10016 



1987 to 10/92 



Member, 

Board of Directors 



Puerto Rican Legal 
Defense & Education 
Fund 



99 Hudson Street 
New York, NY 
10013 



1980 to 10/92 



Member, 

Board of Directors 



Maternity Center 
Association 



48 East 92nd Street 
New York, NY 
10128 



1985 - 1986 



Member, 

Board of Directors 



Military Service : Have you had any military service? If so, give particulars, including 
the dates, branch of service, rank or rate, serial number and type of discharge received. 

No. 

Honors and Avyards : List any scholarships, fellowships, honorary degrees, and honorary 
society memberships that you believe would be of interest to the Committee. 



I received financial assistance in the form of scholarships during my four 
years at Princeton University and my three years at Yale Law School. I 
graduated summa cum laude, Phi Beta Kappa, from Princeton. Princeton 
awarded me, as a graduating student co-winner, the M. Taylor Senior Pyne 
Prize, for scholastic excellence and service to the University. My senior thesis 
work received an honorable mention from the University's History 
Department. 



462 



Sotomavor Senate Questionnaire 

While at law school, I served as an Editor of the Yale Law Journal and 
Managing Editor of the Yale Studies in World Public Order. I was also a 
semi-flnalist in the Barrister's Union competition, a mock trial presentation. 

In reverse chronological order, I have received the following awards: 

Secretary of State of Puerto Rico 

July 4, 1996 

Award as Distinguished Woman in the Field of Jurisprudence 

Latino American Law Student Association 

of Hofstra University School of Law 

March 15, 1996 

Award in Recognition of Outstanding Achievement 

and Dedication to the Latino Community 

District Attorney - New York County 

January 17, 1995 

Award for Outstanding and Dedicated Service 

to the People of New York County from 8-13-79 to 3-16-84 

National Puerto Rican Coalition, Inc. 

October 20, 1994 

Lifetime Achievement Award 

National Conference of Puerto Rican Woman 

New York City Chapter 

March 24, 1994 

Certificate of Excellence in Grateful Recognition of 

Outstanding Achievements and Contributions to the Community 

Cardinal Spellman High School 
Honors Night 1993 
Excellence with a Heart Medal 

Hispanic National Bar Association 
Law Student Division 
September 25, 1993 
Lifetime Achievement Award 



463 



Sotomavor Senate Questionnaire 

Hispanic National Bar Association 

September 24, 1993 

Award for Commitment to the Preservation of Civil 

and Constitutional Rights for all Americans 

Bronx Community College 

of the City University of New York 

Paralegal Studies 

June 17, 1993 

Human Rights Award for Service to Humanity 

John Jay College of Criminal Justice 

May 27, 1993 

Claude E. Hawley Medal for Scholarship and Service 

The Puerto Rican Bar Association, Inc. 

1993 

Emilio Nunez Award for Judicial Service 

Bar Association : List all bar associations, legal or judicial-related committees or 
conferences of which you are or have been a member and give the titles and dates of any 
offices which you have held in such groups. 

Member, Budget Committee of the Southern District of New York 
("S.D.N. Y."), 1996 to present. 

Member, Pro Se Committee of the S.D.N. Y., 1996 to present. 

Member, Puerto Rican Bar Association, 1994 to present. 

Honorary Member, Public Service Committee of the Federal Bar Council, 
1994 to the present. 

Member, Second Circuit Task Force on Gender, Racial, & Ethnic Fairness, 
1993 to present (Preliminary Draft Report Attached). 

Member, Committee on Rules of Practice and Procedure of the S.D.N.Y., 
1993 to present. 

Member, Grievance Committee of the S.D.N.Y, 1992 to present. 

5 



464 



Sotomavor Senate Questionnaire 
Member, Hispanic National Bar Association, 1992 to present. 
Member, American Bar Association, 1980 to present. 



1 0. Other Memberships : List all organizations to which you belong that are active in 
lobbying before public bodies. 

None. 

Please list all other organizations to which you belong. 
None. 

1 1 . Court Admission : List all courts in which you have been admitted to practice, with dates 
of admission and lapses if any such memberships lapsed. Please explain the reason for 
any lapsed membership. Give the same information for administrative bodies which 
require special admission to practice. 

United States District Court, Eastern District of New York - March 30, 1984. 

United States District Court, Southern District of New York ~ March 27, 
1984. 

New York - First Department - April 7, 1980. 

12. Published Writing s: Listthe titles, publishers, and dates of books, articles, reports, or 
other published material you have written or edited. Please supply one copy of all 
published material not readily available to the Committee. Also, please supply a copy of 
all speeches by you on issues involving constitutional law or legal policy. If there were 
press reports about the speech, and they are readily available to you, please supply them. 

Note, Statehood and the Equal Footing Doctrine; The Case for Puerto Rican 
Seabed Rig hts. 88 Yale L.J. 825 (1979) (copy attached). 

Sonia Sotomayor & Nicole A. Gordon, Returning Majesty To The Law and 
Politics; A Modern Approach . 30 Suffolk U.L. Rev. 35 (1996) (copy 
attached). 

The speeches I have given, in reverse chronological order, are as follows; 



46f 



Sotomavor Se nate Questionnaire 

Sonia Sotomayor, The Genesis and Need of an Ethnic Identity, Keynote 
Speech at Princeton University's Latino Heritage Month Celebration (Nov. 7, 
1996). 

Sonia Sotomayor, El Orgullo y La Responsabilidad de Ser Latino y Latina, 
Keynote Speech for the National Board of Governor's Reception of the 
Hispanic National Bar Association held at the Association of the Bar of the 
City of New York (May 17, 1996). 

Sonia Sotomayor, El Orgullo y La Responsabilidad de Ser Latino y Latina, 
Speech at the Third Annual Awards Banquet and Dinner Dance for the 
Latino and Latina American Law Students Association of Hofstra University 
School of Law (Mar. 15, 1996). 

Sonia Sotomayor, Hogan-Morgenthau Award Address (Jan. 17, 1995). 

Sonia Sotomayor,/! Judge's Guide to More Effective Advocacy, Keynote 
Speech at the 40th National Law Review Conference (Mar. 19, 1994). 

Sonia Sotomayor, Women in the Judiciary, Panel Presentation at the 40th 
National Conference of Law Reviews (Mar. 17, 1994). 

Sonia Sotomayor, Doing What's Right: Ethical Questions for Private 
Practitioners Who Have Done or Will Do Public Service, Presiskel/Silverman 
Speech at the Yale Law School (Nov. 12, 1993). 

The drafts of these speeches are attached. I am unaware of any press reports 
about any of my speeches. I am aware of one press report of a panel 
presentation of which I was member, Edward A. Adams, Women Litigators 
Discuss Battling Bias in Courtroom, N.Y. Law Journal, April 2, 1993, at 1. 
This press report is also attached. 

13. Health ; What is the present state of your health? List the date of your last physical 
examination. 

Good. Please note, I am a juvenile diabetic (insulin dependent since age 7). 
My condition is permanent and subject to continuing treatment. It does not 
impair my work or personal life. My last physical examination was January 
1997. 



466 



Sotomayor Senate Questionnaire 

14. Judicial Office : State (chronologically) any judicial office you have held, whether such 
position was elected or appointed, and a description of the jurisdiction of each such court. 

Appointed by President George W. Bush as a United States District Court 
Judge for the Southern District of New York. I commenced service on 
October 2, 1992. The United States District Court for the Southern District 
of New York includes the counties of the Bronx, Dutchess, New York, 
Orange, Putam, Rockland, Sullivan, and Westchester, and, concurrently 
with the Eastern District of New York, the waters within the Eastern District. 
The jurisdiction of United States District Courts is limited to those matters 
permitted by Article III, Section 2 of the United States Constitution. 

1 5 . Citations : If you are or have been a judge, provide: ( 1 ) citations for the ten most 
significant opinions you have written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or where your judgment was 
affirmed with significant criticisms of your substantive or procedural rulings; and (3) 
citations for significant opinions on federal or state constitutional issues, together with the 
citation to appellate court rulings on such opinions. If any of the opinions listed were not 
officially reported, please provide copies of the opinions. 

(1) The following, in reverse chronological order, are ten of my most significant 
opinions, with citations. 

1. United States v. The Spy Factorv. Inc. . 951 F. Supp. 450 (S.D.N. Y. 1997). 

2. Krueger Int'l v. Nightingale. Inc. . 915 F. Supp. 595 (S.D.N. Y. 1996). 

3. United States v. Lech . 895 F. Supp. 586 (S.D.N.Y. 1995). 

4. Refac Int'l. Ltd. v. Lotus Development Corp. . 887 F. Supp. 539 (S.D.N.Y. 
1995), afTd . 81 F.3d 1576 (Fed. Cir. 1996). 

5. Silverman v. Major League Baseball Player Relations Committee . 
880 F. Supp. 246 (S.D.N.Y. ), afTd . 67 F.3d 1054 (2d Cir. 1995). 

6. Modeste v. Local 1199. Drug. Hospital & Health Care Employees Union . 
850 F. Supp. 1156 (S.D.N.Y.), afTd . 38 F.3d 626 (1994). 

7. United States v. Hendrickson . 26 F.3d 321 (2d Cir. 1994) (sitting by 
designation). 



467 



Sotomavor Senate Questionnaire 

8. Campos v. Coughlin . 854 F. Supp. 194 (S.D.N. Y. 1994). 

9. Azurite Corp.. Ltd. v. Amster & Co. . 844 F. Supp. 929 (S.D.N.Y. 1994), 
afTd . 52 F.3d 15 (2d. Cir. 1995). 

10. Flamer v. Citv of White Plains . 841 F. Supp. 1365 (S.D.N.Y. 1993). 



(2) The following, in reverse chronological order, is a short summary of and 
citations for all appellate opinions where my decisions were reversed or where my 
judgments were affirmed with significant criticisms of my substantive or procedural 
rulings. 

1. Hellenic American Neighborhood Action Committee v. City of New York . 
933 F. Supp. 286 (S.D.N.Y.), rev'd . 101 F.3d 877 (2d Cir. 1996). 

I granted a preliminary injunction on behalf of a contractor which alleged 
that it was barred from city procurements in violation of its due process 
rights under the Fourteenth Amendment. The Second Circuit reversed 
without addressing whether the City's alleged misconduct deprived plaintiff 
of protected property and liberty interests. The Court reasoned that even if 
there was such a deprivation, there was no failure of due process because 
there was an adequate remedy available to the contractor under state law. 



2. Aurora Maritime Co.. Ltd. v. Abdullah Mohamed Fahem & Co. . 890 F. 
Supp. 322 (S.D.N.Y. 1995), afTd on other grounds . 85 F.3d 44 (2d Cir. 
1996). 

The Second Circuit affirmed my decision denying a bank's motion to vacate 
various Supplemental Admiralty Rule B attachments of plaintiffs bank 
account. I held that "because plaintiffs obtained Rule B attachments before 
[the bank] exercised its set-off rights . . . plaintiffs gained a limited property 
interest under federal law that cannot be defeated by a subsequently 
executed state law set-off right." Although upholding my ruling, the 
Second Circuit disagreed with my conclusion "that [the bank's] set-off right 
and appellees' Rule B attachments d[id] not conflict." Instead, the Second 
Circuit reached the constitutional issue and found that the dismissal was 
proper because federal law preempted the bank's right, under Section 15 1 of 
state law, to the funds in the disputed account. 



468 



Sotomavor Senate Questionnaire 



3. European American Bank v. Benedict . 1995 WL 422089 (S.D.N.Y. 1995), 
vacated . 90 F.3d 50 (2d Cir. 1996). 

I affirmed a Bankruptcy Court decision rescinding its prior order which had 
extended the time period for a creditor to file a dischargeability complaint. 
I reasoned that the Bankruptcy Court did not have the discretion, under the 
applicable statute of limitations, to extend the time for filing a complaint, 
and that the Bankruptcy Court was therefore correct when it reversed its 
initial decision to do so. Recognizing a split of authority on the issue, the 
Second Circuit determined that the applicable limitations period under the 
Federal Bankruptcy Rules is not jurisdictional, and that it is therefore 
subject to waiver, estoppel, and equitable tolling. The Court proceeded to 
enforce the Bankruptcy Court's initial decision to extend the period for 
filing, because the debtor had waived its right to object to the extension by 
failing to raise that objection prior to the expiration of the statutory 
deadline. 



4. Bernard v. Las Americas Communications. Inc. . (no written opinion), 
afTd in part, vacated in part . 84 F.3d 103 (2d Cir. 1996). 

Pursuant to a jury verdict, I entered judgment in favor of plaintiff, an 
attorney, seeking legal fees in connection with his representation of 
defendant in proceedings before the Federal Communications Commission. 
Applying Washington, D.C. law, the Second Circuit approved of my jury 
instructions on the issues of proximate causation and damages, but found 
error with respect to my instruction on materiality. Specifically, I had 
instructed that a material breach "defeats the purpose of [an] entire 
transaction"; the Second Circuit held that D.C. law requires only that 
defendant prove that he received "something substantially less or different 
fi'om that for which he bargained." On remand, a jury again foimd for 
plaintiff, and judgment was entered accordingly. 



10 



469 



Sotomavor Senate Questionnaire 

5. Bolt Electric. Inc. v. Citv of New York . 1994 WL 97048 (S.D.N. Y. 1994), 
rev'd . 53 FJd 465 (2d Cir. 1995). 

I granted a motion to dismiss on behalf of the City of New York (the 
"City") in a breach of contract action brought by plaintiff Bolt Electric, Inc. 
("Boh'). I found that because the City had undertaken to pay Bolt for 
general contracting services pursuant to a letter which was not filed and 
endorsed by the City's Comptroller, as required under New York's 
Administrative Code, the contract was unenforceable. The Second Circuit 
reversed, reasoning that compliance with the endorsement provision of the 
Administrative Code was not a mandatory precondition to the formation of 
a valid contract. In the alternative, the Court reasoned that, even if the 
contract was executed without proper authority, it was enforceable because 
the City had funds available for performance. 



6. Runquist v. Delta Capital Management. L.P . 1994 WL 62965 (S.D.N.Y.), 
rev'd . 48 F.3d 1212 (2d Cir. 1994). 

The Second Circuit reversed a decision in which I adopted a Magistrate 
Judge's recommendation that plaintiffs claims of securities fi-aud be 
dismissed. Before the Magistrate Judge, plaintiff failed to file a timely 
opposition to defendant's motion for summary judgment, and subsequently 
filed an affidavit which the Magistrate Judge foimd insufficient to raise a 
triable issue of fact as to the element of reliance in plaintiflPs fraud claim. 
The Second Circuit found, however, that the affidavit was sufficient to raise 
an issue of material fact, and that it was error for me to have dismissed 
plaintiffs remaining claims on the basis of his attorney's repeated 
noncompliance with applicable filing procedures and deadlines. 



(3) The following, in reverse chronological order, are citations for my 
significant opinions on federal or state constitutional issues, together with 
citations to appellate court rulings on such opinions. 

1. Estate of Joseph Re v. Kornstein. Veisz & Wexler . 958 F. Supp. 907 
(S.D.N.Y. 1997). 



11 



4'S-9M 08 . lA 



470 



Sotomavor Senate Qu estionnaire 

2. United States v. The Spy Factory et al. . 951 F. Supp. 450 (S.D.N. Y. 
1997). 

3. National Helicopter Corp. of America v. City of New York . 952 F. 
Supp. 1011 (S.D.N. Y. 1997). 

4. United States v. Ni Fa Yi . 951 F. Supp. 42 (S.D.N. Y. 1997). 

5. Gelb V. Board of Elections . 950 F. Supp. 82 (S.D.N. Y. 1996). 

6. United States of America^ Louis Menchaca . 96 Civ. 5305, decision 
unpublished, read into the record on August 26, 1996. 

7. Hellenic American Neighborhood Action Committee v. City of New 
York . 933 F. Supp. 286 (S.D.N. Y. 1996), rev'd . 101 F.3d 877 (2d Cir. 
1996). 

8. In re St. Johnsbury Trucking Co.. Inc. . 191 B.R. 22 (S.D.N. Y. 1996); 
199 B.R. 84 (S.D.N.Y. 1996). 

9. United States v. Jimenez . 921 F. Supp. 1054 (S.D.N. Y. 1995). 

10. Lee V. Coughlin . 902 F. Supp. 424 (S.D.N. Y. 1995), reconsideration 
granted . 914 F. Supp. 1004 (S.D.N.Y 1996). 

11. Ortiz V. United States . 1995 WL 130516 (S.D.N.Y. 1995), afPd . 104 
F.3d 349 (2d Cir. 1996). 

12. Senape v. Constantino . 1995 WL 29502 (S.D.N.Y. 1995), afTd . 99 
F.3d 401 (2d Cir. 1995). 

13. Cla pp V. LeBoeuf. Lamb. Leiby & MacRae . 862 F. Supp. 1050 
(S.D.N.Y. 1994), afTd . 54 F.3d 765 (2d Cir.), s£rL denied . 116 S. Ct. 
380 (1995). 

14. Campos v. Coughlin . 854 F. Supp. 194 (S.D.N.Y. 1994) (cited with 
approval in Jolly v. Coug hlin. 76 F.3d 468 (2d Cir. 1996). 



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Sotomavor Senate Questionnaire 

15. Flamer v. Citv of White Plains . 841 F. Supp. 1365 (S.D.N. Y. 1993). 

16. United States v. Castellanos . 820 F. Supp. 80 (S.D.N. Y. 1993). 
Copies of opinions not officially published are attached. 

16. Public Office : State (chronologically) any public offices you have held, other 
than judicial offices, including the terms of service and whether such positions 
were elected or appointed. State (chronologically) any unsuccessful candidacies 
for elective public office. 

1988 to 1992 - Board of Directors, New York City Campaign Finance 
Board, appointed by the Mayor. 

1987 to 1992 - Board of Directors, State of New York Mortgage 
Agency, appointed by the Governor. 

1979 to 1984 - Assistant District Attorney, New York County, 
appointed by the District Attorney. 

17. Le gal Career : 

a. Describe chronologically your law practice and experience after graduation 
from law school including: 

1. whether you served as clerk to a judge, and if so, the name of the judge, 
the court, and the dates of the period you were a clerk; 

No. 

2. whether you practiced alone, and if so, the addresses and dates; 

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New 
York, 11231, from 1983 to 1986, but this work was more in the 
nature of a consultant to family and friends in their real estate, 
business, and estate planning decisions. If their circumstances 
required formal legal representation, I referred the matter to my 
firm, Pavia & Harcourt, or to others with appropriate expertise. 

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3. the dates, names and addresses of law firms or offices, companies or 
governmental agencies with which you have been connected, and the nature 
of your connection with each; 



Dates of 








Association 


Organization 


Address 


Position 


4/84 to 10/92 


Pavia & Harcourt 


600 Madison Ave. 


Partner (1/88 to 






New York, NY 


10/92) 






10022 


Associate 


8/79 to 3/84 


New York County 


1 Hogan Place 


Assistant 




District Attorney's 


New York, NY 


District 




Office 


10013 


Attorney 



1 . What has been the general character of your law practice, dividing it into 
periods with dates if its character has changed over the years? 

See 1(b)(2) below. 

2. Describe your typical former clients, and mention the areas, if any, in which 
you have specialized. 

From April 1984 as an associate, and from January 1988 until 
October 1992 as a partner, I was a general civil litigator involved in 
all facets of commercial work including, but not limited to, real estate, 
employment, banking, contract, distribution and agency law. 
Moreover, my practice had significant concentration in intellectual 
property law involving trademark, copyright and unfair competition 
issues. I also worked in automobile franchise law, and export 
commodity trading law under the North American Grain Association 
Contract. I conducted over fifteen arbitration hearings involving the 
banking, fashion, grain, and tire distribution industries. My typical 
clients were significant European companies doing business in the 
United States. 

From August 1979 to March 1984, as a prosecutor in New York 
County, my cases typically involved "street crimes," jiC., murders, 
robberies, etc. I also investigated child pornography, child abuse, 
police misconduct, and fraud matters. I further prepared the 
responsive papers for five criminal appeals, two of which I argued 
and ail of which resulted in affirmances of the convictions. 



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c. 1 . Did you appear in court frequently, occasionally, or not at all? If the frequency 

of your appearances in court varied, describe each such variance, giving dates. 

I appeared daily in court as a prosecutor and I appeared regularly in 
court as a civil commercial litigator in New York with a largely 
federal practice. 



2. What percentage of these appearances was in: 

In private practice As a prosecutor 

1 . federal courts approx. 70% 0% 

2. state courts of record approx. 20% 100% 

3. other courts approx. 10% 0% 

3. What percentage of your litigation was: 

In private practice As a prosecutor 

(a) civil 99% 0% 

(b) criminal 1% 100% 



4. State the number of cases in courts of record you tried to verdict or judgment 
(rather than settled), indicating whether you were sole counsel, chief counsel, 
or associate counsel. 

I have tried over 23 cases to verdict. In two of the cases, I was chief 
counsel and in another, co-counsel. In all other cases, I was sole 
counsel. 



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Sotomavor Senate Questionnaire 
5. What percentage of these trials was: 

1. Jury --90% 

2. Non-jury -10% 



Litigation : Describe the ten most significant litigated matters which you personally 
handled. Give the citations, if the cases were reported, and the docket number and date if 
unreported. Give a capsule summary of the substance of each case. Identify the party or 
parties whom you represented; describe in detail the nature of your participation in the 
litigation and the final disposition of the case. Also state as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges before whom the case was 
litigated; and 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties. 



I list the ten litigated matters in reverse chronological order. 

1. 

Case Name : Fratelli Lozza (USA) Inc. v. Lozza fVSA\ & Lozza SpA 

Court : United States District Court, Southern District of New York 

Index No. : 90 Civ. 4170 

Judg e: Then District Court Judge Fred I. Parker (sitting by designation) 

Federal Building 
1 1 Elmwood Avenue 
P.O. Box 392 

Burlington, Vermont 05402 
(802)951-6401 

Date of Trial : March 16, 1992 



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Co-Counsel : Allison C. Collard, Esq. 

Attorney for co-defendant Lozza (USA) 
1077 Northern Blvd. 
Roslyn, New York 11576 
(516)365-9802 

Adversaries : Charles E. Temko 

Teinko & Temko 
19 West 44th Street 
New York, New York 10036 
(212)840-2178 

Case Description : I represented the defendant Lozza SpA in this trademark infringement, 
trademark abandonment, unfair competition, breach of contract, and 
rescission action. The plaintiff, a corporation owned and operated by a 
former shareholder of the defendant corporation, claimed the defendant 
had breached an agreement with the plaintiff for the trademark use of 
"Lozza" in the United States, had abandoned use of its marks in the United 
States, and had infringed certain of the plaintiffs trademarks. I conducted 
the trial for the lead defendant, and secured a dismissal of all of the 
plaintiffs claims. The Court also issued an injunction against the 
plaintiffs use of the defendants' marks, and of false and misleading terms 
in its advertising. Findings of Fact. Conclusions of Law and Order 
reported at 789 F. Supp. 625 (S.D.N. Y. 1992). 



Administrative 
Case Name ; 



Ferrari of Sacramento. Inc. v. Ferrari North America 



A gency : 



State of California New Motor Vehicle Board 
(Appeared jjtq hac vice ) 



Protest No. 



PR-973-88 



Administrative 
Law Judg es: 



Marilyn Wong 

c/o New Motor Vehicle Board 

1507 21st Street, Room 330 

Sacramento, California 95814 

(916)445-1888 



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Sotomavor Senate Que stionnaire 



Robert S. Kendell (retired) 
Contact: Michael Sabian 
c/o New Motor Vehicle Boeird 
1507 21st Street, Room 330 
Sacramento, California 95814 
(916)445-1888 

Dates of Hearing : 10/16/90, 10/17/90, 10/31/90, 1 1/1/90, and 1 1/2/90 

Co-Counsel : Nicholas Browning, III, Esq. 

Herzfeld & Rubin 
1925 Century Park East, Suite 600 
Los Angeles, California 90067-2783 
(310)553-0451 

Adversaries : Jay-Allen Eisen 

Jay-Allen Eisen Law Corporation 
9A0 9th Street, Suite 1400 
Sacramento, California 95814 
(916)444-6171 

Donald M. Licker, Esq. 

2443 Fair Oaks Boulevard 

Room 340 

Sacramento, California 95825 

(916)924-6600 

Case Description : In or about 1 988, Ferrari North America ("Ferrari") terminated the 
plaintiff dealer. Thereafter, the dealer filed a timely protest of the 
termination with the California New Motor Vehicle Board (the "Board"). 
At a prehearing settlement conference, Ferrari and the dealer entered into a 
Stipulated Settlement that permitted Ferrari to terminate the dealer, 
without a hearing, if the dealer failed timely to cure specified obligations 
under its franchise agreement with Ferrari. When the dealer breached the 
terms of the Stipulated Settlement, Ferrari terminated the dealer, with the 
Board's approval and without a hearing. The dealer then secured a writ of 
mandate from a California court directing the Board to hold an 
administrative hearing. 

I had primary responsibility for representing Ferrari at the administrative 
hearing. The Board determined that 1 ) the dealer had violated the terms of 



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Sotomavor Senate Questionnaire 

the Stipulated Settlement, 2) the violations constituted good cause for 
Ferrari's termination of the dealer under California's Automobile 
Franchise Law, and 3) the plaintiffs loss of its franchise was not an illegal 
forfeiture under California law. 

While the hearing before the Board proceeded after issuance of the 
mandate, Ferrari also appealed the judgment on the writ, which judgment 
was reversed on appeal in an unpublished opinion. The California Court 
of Appeals, Third Appellate District, determined that enforcing the 
Stipulated Settlement and terminating the dealer, without a hearing, did 
not violate due process. 

Although not listed as counsel for appellant's briefs, I contributed 
significantly to the drafting of the briefs. The appellate case was 
captioned Ferrari of Sacramento. Inc.. Respondent v. New Motor Vehicle 
Board and Sam Jennings as Secretary. Appellants, and Ferrari North 
America. Real Party in Interest and Appellant : No. C008840 in the Court 
of Appeals of the State of California in and for the 3rd Appellate District; 
Sacramento Superior Court, Case No. 360734. 



Case Name : In re: Van Ness Auto Plaza. Inc.. a California Corporation, d/b/a Auto 

Plaza Lincoln Mercury. Auto Plaza Porsche and Auto Plaza Ferrari. 
Debtors . 



Court: 



United States Bankruptcy Court, Northern District of California 
(Appeared j2m hac vifig) 



Case No.: 



3-89-03450-TC 



Judgs: 



Hon. Thomas E. Carlson 

U.S. Bankruptcy Court Judge 

235 Pine Street 

San Francisco, California 94104 

(415)705-3200 



Dates of Hearing : 1/22/90 and 3/1 9/90 



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Sotomavor Senate Questionnaire 

Co-Counsel : Nicholas Browning, III, Esq. 

Herzfeld & Rubin 
1925 Century Park East, Suite 600 
Los Angeles, California 90067-2783 
(213)553-0451 

Adversaries : Henry Cohen, Esq. 

Cohen and Jacobson 
Attorneys for Debtor 
577 Airport Blvd., Suite 230 
Burlington, California 90067-2783 
(415)342-6601 

William Kelly, Esq. (retired) 

Address Unknown 

Home Tel. No. (415) 641-1544 

Case Description : I represented Ferrari North America ("Ferrari"), a franchisor of a bankrupt 
dealer, in hearings related to Ferrari's opposition to the rejection of 
customer contracts, assimiption of the dealer's franchise agreement, and 
confirmation of the proposed sale of the dealer's franchise. At the time, 
Ferrari was introducing a limited production and valuable new car model 
to the marketplace. A rejection by the dealer of contracts for that model 
would have frustrated the expectations of customers and subjected Ferrari 
to potential multiple claims. After a number of hearings, the Bankruptcy 
Court ruled that the dealer could not reject the customer contracts, 
although financially burdensome, and then assume the franchise 
agreement with Ferrari. The case also involved alleged claims by the 
dealer and customers that Ferrari had violated the California automobile 
franchise, antitrust, and securities laws. The case settled with the sale of 
the dealership and resolution of claims among the bankrupt dealer, the new 
franchise buyer, Ferrari, and customers. 



Case Name: Fendi S.a.s. di Paola Fendi e Sorelle v. Burlington Coat Factory 

Warehouse Corp.. et al. 

Case No. : 86 Civ. 0671 

Court ; United States District Court, Southern District of New York 



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Sotomavor Senate Questionnaire 



Judge: 



Co-Counsel : 



Adversaries : 



Dates of Trial : 
Case Description : 



Hon. Leonard B. Sand 

U.S. District Judge 

U.S. Courthouse 

500 Pearl Street 

New York, New York 10007 

(212)805-0244 

Frances B. Bernstein, Esq. 
(Deceased) 

Stacy J. Haigney, Esq. 

Herbert S. Kasner, Esq. 

Attorneys for Burlington Coat Factory Warehouse and 

Monroe G. Milstein 

Burlington Coat Factory Warehouse, Corp. 

263 West 38th Street 

New York, New York 10018 

(212)221-0010 

Dennis C. Kreiger, Esq. 

Esanu, Katsky, Korins & Sieger 

Attorneys for Firestone Mills, Inc. and Leo Freund 

605 Third Avenue, 1 6th Floor 

New York, New York 101 58 

(212)953-6000 

5/18/87 to 5/19/87 

Combined Case Description in 5 below. 



Case Name : Fendi S.a.s. di Paola Fendi e Sorelle v. Cosmetic World. Ltd.. Loradan 

Imports. Inc.. Linea Prima. Inc. a/k/a Lina Garbo Shoes. Daniel 
Bensoul. Michael Bensoul a/k/a Nathan BendeL Paolo Vincelli and 
Mario Vincelli 

Case No. : 85 Civ. 9666 

Court : United States District Court, Southern District of New York 



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Sotomavor Senate Questionnaire 



Judg es: 



Hon. Leonard B. Sand 

U.S. District Judge 

U.S. Courthouse 

500 Pearl Street 

New York, New York 10007 

(212) 805-0244 

Hon. Joel J. Tyler 

Magistrate Judge, U.S. District Court 

Home address: 

2 Primrose Avenue 

Yonkers, New York 10710 

Telephone unpublished 



Co-Counsel: 



Frances B. Bernstein 
(Deceased) 



Adversary : Stanley Yaker, Esq. 

Attorney for Paolo Vincelli and Mario Vincelli 

Former Address: 

114 East 32nd Street 

Suite 1104 

New York, New York 10016 

(212)983-7241 

Telephone not in service. 1 have been unable to locate Mr. Yaker. 

No attorneys appeared for the remaining defendants, who settled pro se. 

Date of Inquest 

Hearing : 1/6/88 

Case Descriptions : From 1985, my former firm represented Fendi S.a.s. di Paola Fendi e 

Sorelle ("Fendi") in Fendi's national anticounterfeiting work. Frances B. 
Bernstein, a partner at Pavia & Harcourt (now deceased), and 1 created 
Fendi's anticounterfeiting program. From 1988 until the time 1 left the 
firm for the bench in 1992, 1 was the partner in charge of that program. I 
handled almost all discovery work and substantive court appearances in 
cases involving Fendi. This work implicated a broad range of trademark 
issues including, but not limited to, trademark and trade dress 
infringement, false designation of origin, and unfair competition claims. 



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Sotomavor Senate Questionnaire 

Approximately once every two months from 1989 to 1992, 1, for Fendi, 
applied for provisional injunctive relief in district court to seize counterfeit 
goods from street vendors or retail stores. These applications required 
extensive submission of evidence documenting Fendi 's trademark rights, 
its protection of its marks, the nature of the investigation against the 
vendors, and Fendi's right to ex parte injunctive relief Generally, the 
street vendors defaulted but others appeared and settled pro se. Two of 
these cases filed in the Southern District of New York were captioned Jane 
Doe V. John Doe and Various ABC Companies . 89 Civ. 3122, the Hon. 
Thomas P. Griesa presiding (Tel. No. (212) 805-0210), and Fendi S.a.s. Pi 
Paola Fendi e Sorelle v. Dapper Dan's Boutique . 89 Civ. 0477, the Hon. 
Miriam G. Cedarbaum presiding (Tel. No. (212) 805-0198). 

The preceding two cases (A4 and A5) involved a trial and a damages 
hearing on Fendi's trademark claims against the defendants. In the first, 
the Burlington case, Fendi alleged that defendants knowingly trafficked in 
counterfeit goods and Fendi sought triple profits from the defendants and 
punitive damages. After extensive discovery, submission of a pre-trial 
order and memorandum, and Fendi's presentation of its expert at trial, the 
case settled. I was sole counsel present at trial. In the Cosmetic World 
case, the Court granted Fendi's summary judgment motion on liability and 
referred the matter to a magistrate judge for an inquest on damages. See 
642 F. Supp. 1 143 (S.D.N. Y. 1986). I conducted the contested hearing on 
damages before the magistrate judge who recommended an award in 
Fendi's favor. 

6. 

Case Name : Republic of the Philippines v. New York Land Co.. et al. (the 

"Philippines Case") and Security Pacific Mortg a ge and Real Estate 
Service Inc. v. Canadian Land Company, et al. (the "Security Pacific 
Case"). 

Case Nos. : 90-7322 and 90-7398 

Court : United States Court of Appeals for the Second Circuit 

Panel : Hon. Thomas J. Meskill 

U.S. Circuit Judge 
1 14 W. Main Street, Suite 204 
New Britain, Connecticut 06051 
(203)224-2617 

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Sotomavor Senate Questionnaire 



482 



Hon. Lawrence J. Pierce 

U.S. Circuit Judge 

c/o U.S. Courthouse 

40 Foley Square 

New York, New York 10007 

(212)791-0951 

Hon. George C. Pratt 
U.S. Circuit Judge 
U.S. Courthouse 
Uniondale Avenue 
Hempstead Turnpike 
Uniondale, New York 1 1553 
(516)485-6510 

Co-Counsel : David A. Botwinik, Esq. 

Pavia & Harcourt 
600 Madison Avenue 
New York, New York 10022 
(212)980-3500 

David Glasser, Esq. 
Levin & Glasser, P.C. 
675 Third Avenue 
New York, New York 10471 
(212) 867-3636 

Roy L. Reardon, Esq. (455-2840) 
David E. Massengill, Esq. (455-3555) 
Simpson Thacher & Bartlett 
425 Lexington Avenue 
New York, New York 10017 

Adversaries : Jeffrey J. Greenbaum, Esq. 

James M. Hirschhom, Esq. 

Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross 
Attorneys for the Republic of the Philippines 
Legal Center 
1 Riverfront Plaza 
Newark, New Jersey 07102 
(201) 643-7000 



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Sotomavor Senate Ouestmnniiirg 



Pattof ArgMinynt: 6/1 5/90 (Argued by Roy L. Reardon, Esq. of Simpson, Thacher & Bartlett) 



District Court 
Case Name : 



Case Nos. : 



Court : 
Judge : 



Co-Counsel : 



AND 

Republic of the Philionines v. New Y ork Land Co.. ct al dhp 
"Philippines Case") and Security Pacific Mortgage and Real E.state 
Service Inc. v. Canadian Land Company, et al. (the "Security Pacific 
Case"). 

The Philippines Case: 86 Civ. 2294 
The Security Pacific Case: 87 Civ. 3629 

United States District Court, Southern District of New York 

Hon. Pierre N. Leva! 

U.S. Circuit Judge (Then District Court Judge) 

U.S. Circuit Judge 

U.S. Courthouse 

40 Foley Square 

New York, New York 10007 

(212)857-2319 

David A. Botwinik, Esq. 

Pavia & Harcourt 

600 Madison Avenue 

New York, New York 10022 

(212)980-3500 

David Glasser, Esq. 
Levin & Glasser, P.C. 
675 Third Avenue 
New York, New York 10471 
(212) 867-3636 



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Sotomayor Senate Qu estionnaire 



Participating 
Adversaries 
O pposing Motion : 



Jeffrey J. Greenbaum, Esq. 

James M. Hirschhom, Esq. 

Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross 

Attorneys for the Republic of the Philippines 

Legal Center 

1 Riverfront Plaza 

Newark, New Jersey 07102 

(201)643-7000 

Michael Stanton, Esq. 

Weil, Gotshal & Manges 

Attorneys for Security Pacific 

767 Fifth Avenue 

New York, New York 10153 

(212)310-8000 



Date of Argument : 2/12/90 

Case Description : My former firm, Pavia and Harcourt, represented Bulgari Corporation of 
America ("Bulgari"), an international retailer of fme jewelry, who was a 
tenant in the Crown Building at 730 Fifth Avenue, New York, New York. 
The Crown Building was the subject of a foreclosure sale in the Security 
Pacific Action, and its beneficial ownership was in dispute in the 
Philippines Action. Bulgari was not a party to these actions. The district 
court denied Bulgari's request, by way of Order to Show Cause, to 
approve a rental amount it had reached with the manager of the Crown 
Building. I primarily drafted the papers presented to the district court and 
argued the motion. Bulgari's motion attempted to demonstrate that no 
competent evidence existed to dispute Bulgari's proof that the rental 
amount agreed upon was at or above fair market value and benefited the 
Crown Building and its claimants. Bulgari appealed the district court's 
denial of its approval of the rent agreement on the grounds that the denial 
was effectively an injunction against Bulgari's exercise of its contractual 
lease rights to have its rent fixed by agreement during the term of the 
lease, and that the district court improperly granted the injunction without 
a hearing. I did not argue the appeal but participated extensively in the 
drafting of appellant's brief and reply. The district court's Order was 
affirmed on appeal, without a published opinion. 909 F.2d 1473 (2d Cir. 
1990). 



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Sotomavor Senate Questionnaire 

7. 

Case Name : Miserocchi & C SdA v. Alfred C. Toepfer International. G.m.b.H. 

Case No . : 85-7734 

Court : United States Court of Appeals for the Second Circuit 

Panel : Hon. J. Edward Lumbard 

Senior Judge 
U.S. Circuit Judge 
U.S. Courthouse 
Foley Square 

New York, New York 10007 
(212) 857-2300 

Hon. James L. Oakes 

Then-Chief Judge 

U.S. Circuit Judge 

U.S. Courthouse 

40 Foley Square 

New York, New York 10007 

(212)857-2400 

Hon. George C. Pratt 
U.S. Circuit Judge 
U.S. Courthouse 
Uniondale Avenue 
Hempstead Turnpike 
Uniondale, New York 11553 
(516)485-6510 

Adversary : Stephen P. Sheehan 

Wistow & Barylick 
61 Weybosset Street 
Providence, Rhode Island 02903 
(401)831-2700 

Date of Argument : 9/17/84 



AND 

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District Court 
Case Name ; 

Case No . ; 

Court : 

Judg e; 



Sotomavor Senate Questionnaire 

Miserocchi & C. SpA v. Alfred C. Toepfer International. G.m.b.H. 

84 Civ. 6112 

United States District Court, Southern District of New York 

Hon. Kevin Thomas Duffy 

U.S. District Judge 

U.S. Courthouse 

40 Foley Square 

New York, New York 10007 

(212)805-6125 

David A. Botwinik, Esq. 

Pavia & Harcourt 

600 Madison Avenue 

New York, New York 10022 

(212)980-3500 

Stephen P. Sheehan 
Wistow & Barylick 
61 Weybosset Street 
Providence, Rhode Island 02903 
(401)831-2700 

Date of Argument ; 9/5/84 (argued by David Botwinik of Pavia & Harcourt) 



Co-Counsel : 



Adversary : 



Case Description : This action involved the bankruptcy of an Italian corporation, Miserocchi 
& C, SpA ("Miserocchi"), with affiliates in London and elsewhere. The 
London affiliate of Miserocchi breached a grain commodity trading 
contract with my then client, Alfred C. Toepfer International, G.m.b.H. 
("Toepfer"). Toepfer demanded arbitration of the dispute against both 
Miserocchi and its London affiliate under the terms of the grain 
commodity trading agreement between the parties and a guarantee signed 
by Miserocchi. Shortly before the arbitration hearing was to commence, 
Miserocchi moved to stay the arbitration against it, arguing that it was not 
a party to the arbitration agreement. Although my partner, David A. 
Botwinik, argued the motion before the district court, I primarily drafted 
Toepfer' s responsive papers to the motion to stay arbitration and the 
cross-motion to compel arbitration. Toepfer argued that Miserocchi was 



28 



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Sotomavor Senate Que stionnaire 

bound to arbitrate both as an alter ego of its London affiliate and under the 
terms of its guarantee. After the district court ruled in Toepfer's favor, 
Miserocchi filed a notice of appeal and sought an expedited stay of the 
district court's Order denying the stay of arbitration and compelling 
arbitration. 1 argued the motion to stay. At the conclusion of the 
argument on the motion, the Second Circuit not only denied the motion for 
a stay but also dismissed the appeal. I participated extensively as co- 
counsel in the arbitration that followed and subsequently appeared in the 
post-confirmation proceedings resulting from the arbitration award 
rendered in favor of Toepfer. The matter settled before the hearing on 
appeal of the confirmation order. 



8. 

Case Name : 



The People of the State of New York v. Clemente D'Alessio and Scott 

H ymao 



Indictment No. : 



4581/82 



Jud gg: 



Hon. Thomas B. Galligan (retired) 

Then- Acting Justice, Supreme Court, 

c/o Administrative Judge's Office 

Juanita Newton 

1 1 1 Centre Street 

New York, New York 10013 

(212)374-4972 



Associate Counsel : Karen Greve Milton 

Director of Education Training Program 

Association of the Bar of the City of New York 

42 West 44th Street 

New York, New York 10036-6690 

(212)382-6619 

Adversaries : Steven Kimehnan, P.C. 

Attorney for Scott Hyman 

757 Third Avenue 

New York, New York 1 001 7 

(212)421-5300 



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Dates of Trial : 



Case Description : 



James Bernard, Esq. 

Attorney for Clemente D'Alessio 

1 50 Broadway 

New York, New York 10038 

(212)233-0260 

2/2/83 to 3/2/83 

I was lead counsel in this action in which defendants were charged with 
selling videotapes depicting children engaged in pornographic activities. 
Defendant Scott Hyman dealt directly with the undercover agent and 
attempted to raise numerous defenses at trial based upon his alleged drug 
addiction. The proof against defendant Clemente D'Alessio was 
circumstantial and he raised a misidentification defense at trial. This action 
was the first child pornography case prosecuted in New York State after 
the U.S. Supreme Court upheld the constitutionality of New York's laws 
in New York v. Ferber . 458 U.S. 747 (1982). The defendants filed a 
plethora of motions before and during trial. The defendants' request for 
severance was denied, as were, after a hearing, the defendants' motions for 
the suppression of statements, evidence, and identification. Other issues 
addressed at trial included whether the trial court should or could, upon 
defendants' request, require the government to stipulate to the 
pornographic nature of the evidence, whether defendant Hyman could 
present expert testimony on the effects of drug addiction on mens rea, and 
whether defendant Hyman was entitled to jury charges on diminished 
capacity or intoxication. The jury convicted defendants after trial. The 
defendants received sentences, respectively, of 3'/2 to 7 years and 2 to 6 
years. The convictions were affirmed on appeal. See People v. D'Alessio . 
62N.Y.2d619,476N.Y.S.2d 1031 (Ct. App. 1 984V People v. Hvman . 62 
N.Y.2d 620, 476 N.Y.S.2d 1033 (Ct. App. 1984). 



Case Name : The People of the State of New York v. Richard Maddicks 

Indictment No. : 886/82 

Court ; Supreme Court of the State of New York, County of New York 



30 



489 



Judge ; 



Sotomavor Senate Qu estionnaire 



Hon. James B. Leff (retired) 

Justice, Supreme Court 

c/o Administrative Judge's Office 

Juanita Newton 

100 Centre Street 

New York, New York 10013 

(212)374-4972 



Lead Counsel ; 



Hugh H. Mo, Esq. 

Law Offices of Hugh H. Mo 

750 Lexington Avenue 

15th Floor 

New York, New York 10022 

(212)750-8000 



Adversary ; 



Dates of Trial ; 



Case Description ; 



Peter A. Furst, Esq. 

100 Pine Street 

Suite 2750 

San Francisco, California 941 1 1 

(415)433-2626 

Almost all of January 1983 

The defendant was dubbed the "Tarzan Murderer" by the local Harlem 
press because he committed burglaries by acrobatically jumping or 
climbing from rooftops or between buildings and entering otherwise 
inaccessible apartments. If the defendant found a person in the apartment, 
he shot them. I was co-counsel on the case, and prepared and argued the 
motion, before Justice Harold Rothwax, that resulted in the court 
consolidating the trial of four murders and seven attempted murders 
relating to eleven of the defendant's burglaries. The consolidation was 
unusual in that up to that point, most New York courts had limited 
consolidation to crimes in which an identical modus operandi had been 
used. We argued successfully that the commonality of elements in the 
crimes, although with some variations in modus operandi, warranted 
consolidation. I participated extensively in preparing and presenting 
expert and civilian witnesses at trial. The defendant was convicted after 
trial, and sentenced to 67'/2 years to life. The conviction was affirmed on 
appeal. Sss People v. Maddicks . 70 N.Y.2d 752, 520 N.Y.S.2d 1028 (Ct. 
App. 1987). 



31 



490 



10. 

Case Name: 



Indictment No : 
Judg e: 



Adversaries : 



Dates of Trial : 
Case Description : 



Sotomavor Senate Questionnaire 



The People of the State of New Yo rk v. Manny Morales a.k.a. Joey 
Hernandez. Joseph Pacheco, and Eduardo Pacheco 

4399/82 

Hon. Alfred H. Kleiman (retired) 

Then-Acting Justice, Supreme Court 

c/o Administrative Judge's Office 

Juanita Newton 

100 Centre Street 

New York, New York 10013 

(212) 374-4972 

Ira I. Van Leer (deceased) 

(Associates present at portions of the trial: Valerie Van Leer-Greenberg 

and Howard Greenberg) 

Van Leer and Greenberg 

Attorneys for defendant Manny Morales a.k.a. Joey Hernandez 

132 Nassau Street, Suite 523 

New York, New York 10038 

(212)962-1596 

Lawrence Rampulla, Esq. 

Attorney for defendant Edwardo Pacheco 

2040 Victory Blvd. 

Staten Island, New York 10314 

(718)761-3333 

Stephen Goldenberg, Esq. 

Attorney for defendant Joseph Pacheco 

277 Broadway, Suite 1400 

New York, New York 10007 

(212)346-0600 

March 25, 1983 to May 12, 1983 

This multiple-defendant case involved a Manhattan housing project 
shooting between rival family groups. I was sole counsel in this action on 
behalf of the government. Prior to trial, I conducted various hearings 
opposing defense motions to suppress statements and identifications. This 



32 



491 



Sotomavor Senate Questionnaire 

lengthy trial involved witnesses with significant credibility issues. The 
jury convicted one of the three defendants who was sentenced to 3 to 6 
years for Criminal Possession of a Weapon in the Third Degree. The 
conviction was affirmed on appeal. See People v. Pacheco . 70 N. Y.2d 
802, 522 N.Y.S.2d 120 (Ct. App. 1987). 



Additional Question under Item 18 : In addition, if the majority of cases you list in 
response to this question are older than five years, provide the name, address and phone 
number for 10-12 members of the legal community who have had recent contact with you, 
even if the contact was only an appearance before you as a judge. 

I have interpreted this question to be seeking a list of individuals who are familiar with 
my judicial work because they are knowledgeable about some of my cases or opinions, or 
because they have appeared before me. If you seek only individuals who have tried cases 
or made other substantive appearances before me, please advise me. I list these 
individuals in alphabeticid order. 



Martin J. Auerbach, Esq. 

Dormand, Mensch, Mandelstan, Schaeffer 

747 Third Avenue 

New York, New York 10017 

(212)759-3300 

The Hon. Miriam G. Cedarbaum 
United States District Court Judge 
Southern District of New York 
500 Pearl Street, Room 1330 
New York, New York 10007 
(212) 805-0198 

Justin N. Feldman, Esq. 
Kromish, Lieb, Weiner & Hellman 
1114 Avenue of the Americas, 47th Floor 
New York, New York 10036-7798 
(212)479-6210 



33 



492 



4. Leonard F. Joy, Esq. 
Attomey-in-Charge 

Legal Aid Society, Federal Defender Division 

52 Duane Street 

New York, New York 10007 

(212)285-2830 

5. John Kidd, Esq. 
Rogers & Wells 
200 Park Avenue 

New York, New York 10166-0153 
(212)878-8000 

6. The Hon. John G. Koeltl 
United States District Court Judge 
Southern District of New York 
500 Pearl Street, Room 1030 
New York, New York 10007 
(212)805-0222 

7. Sara Moss, Esq. 
Vice-President and General Counsel 
Pitney Bowes 

1 Elmcroft Road 

Stamford, Connecticut 06926 

(203)351-7924 

8. John S. Siffert, Esq. 
Lankier, Siffert & Wohl 

500 Fifth Avenue, 33rd Floor 
New York, New York 10110 
(212)921-8399 

9. Gerard Walperin, Esq. 
Rosenman & Colin 
575 Madison Avenue 

New York, New York 10022 
(212)940-7100 



34 



Sotomavor Senate Questionnaire 



493 



Sotomavor Senate Qu estionnaire 



10. Mary Jo White, Esq. 

United States Attorney for the Southern District of New York 

U.S. Courthouse Annex 

One St. Andrew's Plaza 

New York, New York 10007 

(212)791-0056 



1 9. Legal Activities : Describe the most significant legal activities you have pursued, 

including significant litigation which did not progress to trial or legal matters that did not 
involve litigation. Describe the nature of your participation in this question, please omit 
any information protected by the attorney-client privilege (unless the privilege has been 
waived). 

In the last five years as a judge, my legal activities have spanned the gamut of 
federal jurisdiction. As part of my daily work, I have addressed many of the 
complex legal questions of our time in fields as diverse as the First and Fourteenth 
Amendments to the United States Constitution, antitrust, securities, habeas corpus, 
immigration, tax, intellectual property, ERISA, employment discrimination, and 
many other areas of law. The numerous opinions I have cited in Question Number 
15 describe in detail many of these significant cases. 

A great part of my litigation work while in private practice involved pre-trial and 
discovery proceedings for cases which were typically settled before trial. I 
conducted a number of preliminary injunction hearings in trademark and copyright 
cases, and post-motion hearings before magistrate judges on a variety of issues. My 
work also involved rendering advise to clients on a wide variety of legal issues, 
including, but not limited to, product liability, warranty, antitrust, securities, 
environmental, banking, real estate, patents, employment, partnership, joint 
venture and shareholder laws; customs, automobile and joint tire regulations; and 
franchising and licensing matters. I, moreover, conducted over fifteen arbitration 
hearings involving, predominantly, export grain commodity trading on behalf of 
foreign buyers but also hearings involving banking, partnership, tire, and fashion 
industry disputes. 

Finally, in addition to my work in establishing a national anti-counterfeiting 
program for Fendi S.a.s. Paola Fendi e Sorelle, I participated, on behalf of Fendi, in 
establishing a Task Force of prominent trademark owners to change New York 
State's anti-counterfeiting criminal statutes. I also supervised and participated in 
the national dealers and customer warranty relations programs for Ferrari North 
America, a division of Fiat Auto USA, Inc. 

35 



494 



Sotomayor Senate Questionnaire 
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, amounts and dates of all anticipated receipts from deferred income 
arrangements, stock, options, uncompleted contracts and other future benefits which you 
expect to derive from previous business relationships, professional services, firm 
memberships, former employers, clients, or customers. Please describe the arrangements 
you have made to be compensated in the fiiture for any financial or business interest. 

None. 

Explain how you will resolve any potential conflict of interest, including the procedure 
you will follow in determining these areas of concern. Identify the categories of litigation 
and financial arrangements that are likely to present potential conflicts-of-interest during 
your initial service in the position to which you have been nominated. 

Because my former firm, Pavia & Harcourt, advises me on personal matters, 
I will continue to recuse myself from any matter in which my form firm or its 
clients, or a former client with whom I worked are involved. Similarly, I will 
continue to recuse myself from hearing any matter involving an issue in 
which I participated while a member of the Board of Directors of the non- 
profit organizations described in Part III, Question 1. I will further recuse 
myself from any matter involving a client or associate of my husband-to-be. 
In all matters, I will follow the dictates of 28 U.S.C. § 455 and the Code of 
Judicial Conduct. 

Do you have any plans, commitments, or agreements to pursue outside employment, with 
or without compensation, during your service with the court? If so, explain. 

No. 

List sources and amounts of all income received during the calendar year preceding your 
nomination and for the current calendar year, including all salaries, fees, dividends, 
interest, gifls, rents, royalties, patents, honoraria, and other items exceeding $500 or 
more. (If you prefer to do so, copies of the financial disclosure report, required by the 
Ethics in Government Act of 1978, may be substituted here.) 



36 



495 







Sotomavor Senate Ouestionnaire 




1996 


1997 


Salary - U.S.D.J. 


S133,600 


$66,800 to 5/31/97 


Interest - Citibank Savings Acct. 


$ 912 


$ 373 to 6/1/97 


Rent from Kings Co. Coop 
[SllOOamonth] 


S 13^00 


$ 6600 to 6/1/97 



My Financial Disclosure Report, AlO, is attached. 

Please complete the attached financial net worth statement in detail. (Add schedules as 
called for.) 

My Net Worth Statement and Schedule is attached. 

Have you ever held a position or played a role in a political campaign? If so, please 
identify the particulars of the campaign, including the candidate, dates of the campaign, 
yoiu' title and responsibilities. 

No. 



37 



496 

Sotomavor Senate Questionnaire 
III. GENERAL (PUBLIC) 



An ethicjil consideration under Canon 2 of the American Bar Association's Code of 
Professional Responsibility calls for "every lawyer, regardless of professional 
prominence or professional workload, to find some time to participaie in serving the 
disadvantaged." Describe what you have done to fiilfill these responsibilities, listing 
specific instances and the amount of time devoted to each. 

Before my appointment as a judge, all of the non-profit organizations with 
which I had been affiliated served the disadvantaged either directly or 
through projects I had participated in developing. The Puerto Rican Legal 
Defense and Education Fund, for example, promotes, through legal and 
educational activities, the civil and human rights of disadvantaged Hispanics. 
I had served, at various times, as the First Vice President of the Board of 
Directors of the Fund and as Chairperson of its Litigation and Education 
Committees. 

The State of New York Mortgage Agency ("SONYMA") structures 
affordable housing programs for residents of the State of New York. During 
my service on its Board of Directors, SONYMA, among many other projects, 
implemented special mortgage programs for low-income families to purchase 
homes. 

I was also a member, in 1988, of the Selection Committee for the Stanley D. 
Heckman Educational Trust which granted college scholarships to minorities 
and first generation immigrants. I had, moreover, served, in 1990-1991, as a 
member of New York State's Panel on Inter-Group Relations. The Report of 
that Panel is attached. 

Finally, I had been a member of the New York City Campaign Finance 
Board from its inception in 1988 until 1992. This Board distributes public 
funds to candidates for certain elective positions in New York City when such 
candidates agree to limit the amount of the contributions they will accept, 
and expenditures they will make, during campaigns. 

The time I devoted to my service to these assorted organizations varied 
through the years but it was never less than two hours a week and had been 
over eight hours a week during certain periods. I devoted an average of 
approximately six hours a week cumulatively to the various non-profit 
organizations of which I was a member. 

38 



497 



Sotomavor Senate Questionnaire 

The Code of Judicial Conduct limits my ability to provide legal service to the 
disadvantaged. While a judge, I nevertheless contribute my time as 
permitted by law to bar and law school activities. I have served as an 
honorary member of the Public Service Committee of the Federal Bar 
Council. I also serve on the selection committees for the Root-Tilden-Snow 
Scholarship granted to selected New York University Law School students 
interested in public service and the Kirkland and Ellis New York Public 
Service Fellowship granted to a Columbia Law School graduate to support a 
year's employment in public service. I serve on moot court panels and in 
trial advocacy courses at local law schools and for the office of the District 
Attorney of New York County; I also speak regularly at bar association 
functions on issues such as judicial clerkships for minority students and 
women in the law. Finally, I have lectured about trial advocacy skills at the 
Office of the Attorney General for the State of New York. It is difficult to 
quantify the time I spend on these activities because I participate in functions 
as my schedule permits. I estimate that I attend at least one community 
service function a month, and often twice a month. 

The American Bar Association's Commentary to its Code of Judicial Conduct states that 
it is inappropriate for a judge to hold membership in any organization that invidiously 
discriminates on the basis of race, sex, or religion. Do you currently belong, or have you 
belonged, to any organization which discriminates ~ through either formal membership 
requirements or the practical implementation of membership policies? If so, list, with 
dates of membership. What you have done to try to change these policies? 

No. 

Is there a selection commission in your jurisdiction to recommend candidates for 
nomination to the federal courts? If so, did it recommend your nomination? Please 
describe your experience in the entire judicial selection process, from beginning to end 
(including the circumstances which led to your nomination and interview in which you 
participated). 

I am not aware of any selection commission which recommended me for this 
Circuit Court nomination. I was interviewed by the Office of the Counsel to 
the President in or about March of 1996 and again in March of 1997. 
Thereafter, the American Bar Association and the Federal Bureau of 
Investigations interviewed me. The President's nomination followed. 



39 



498 



Sotomavor Senate Questionnaire 

Has anyone involved in the process of selecting you as a judicial nominee discussed with 
you any specific case, legal issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, issue or question? If so, please 
explain fully. 

No. 

Please discuss your views on the following criticism involving "judicial activism." 

The role of the Federal judiciary within the Federal government, and within society 
generally, has become the subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism that alleges that the judicial 
branch has usurped many of the prerogatives of other branches and levels of government. 

Some of the characteristics of this "judicial activism" have been said to include: 

a. A tendency by the judiciary toward problem-solution rather than grievance- 
resolution; 

b. A tendency by the judiciary to employ the individual plaintiff as a vehicle for the 
imposition of far-reaching orders extending to broad classes of individuals; 

c. A tendency by the judiciary to impose broad, affirmative duties upon 
govenunents and society; 

d. A tendency by the judiciary toward loosening jurisdictional requirements such as 
standing and ripeness; and 

e. A tendency by the judiciary to impose itself upon other institutions in the manner 
of an administrator with continuing oversight responsibilities. 

At the time I was nominated as a district court judge, I answered this 
question as follows: 

"Our Constitution vests the right to make and administer laws in the 
legislative and executive branches of our government. Judges 
impermissibly encroach upon that right by rendering decisions that 
loosen jurisdictional requirements outside of the scope of established 
precedents and by fashioning remedies aimed at including parties not 
before the court to resolve broad societal problems. 



40 



499 



Sotomavor Senate Questionnaire 

Judges must provide fair and meaningful remedies for violations of 
constitutional and statutory rights to the parties before a court. Doing 
so can, at times, affect broad classes of individuals, may place 
affirmative burdens on governments and society and may require 
some administrative oversight functions by a court. 

A judge's decision should not, however, start from or look to these 
effects as an end result. Instead, because judicial power is limited by 
Article III of the Constitution, judges should seek only to resolve the 
specific grievance, ripe for resolution, of the parties before the court 
and within the law as written and interpreted in precedents. 
Intrusion by a judge upon the functions of the other branches of 
government should only be done as a last resort and limitedly." 

My service as a judge has only reinforced the importance of these principles. 
Finding and maintaining a proper balance in protecting the constitutional 
and statutory rights of individuals versus protecting the interest of 
government, financial and otherwise, is very difficult. Judges must be 
extraordinarily sensitive to the impact of their decisions and function within, 
and respectful of, the constraints of the Constitution. 



41 



500 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 
Full name (include any former names used.) 
Charles Joseph Siragusa 

Address: List current place of residence and office address(es). 

Home address: Webster, New York 14580 

Business Address: Rochester, New York 14614 

Date and place of birth. 

August 10, 1947 
Rochester, New York 

Marital Status (include maiden name of wife, or husband's name). List spouse's 
occupation, employer's name and business address(es). 

Divorced. However, I am engaged to be married on August 30, 1997. My 
fiancee's name is Lisa Serio. She is a lawyer currently employed as an 
assistant district attorney in the Monroe County District Attorney's Offlce, 
Rochester, New York 14614. 

Education : List each college and law school you have attended, including dates of 
attendance, degrees received, and dates degrees were granted. 



Colleges: 



State University of New York at Buffalo 
August 1965 -May 1966 
Transferred to LeMoyne College 

LeMoyne College 
September 1966 • May 1969 
B.A. Sociology - Cum Laude 
Date Granted: June 7, 1969 



Law Schools: 



Franklin Pierce Law School 
August 1973 -May 1974 
Transferred to Albany Law School 



501 



Albany Law School 

September 1974 • May 1976 

J.D. 

Date Granted: June 5, 1976 

Employment Record: List (by year) all business or professional corporations, 
companies, firms, or other enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including finms, with which you were connected as an officer, 
director, partner, proprietor, or employee since graduation from college. 



1969 • 1973 



1974 (summer) 



1977- 1992 



1984-1992 



1993 -present 



1995 - Present 



St. James School 

Rochester, New York 14609 

I was employed as a sixth grade and then junior 

high teacher. 

Diocese of Rochester 
Catholic Youth Organization 
Day Camp Counselor 

Monroe County District Attorney's Office 
Rochester, New York 14614 
I was employed as an Assistant District Attorney 
From 1984 through 1992, 1 served as First Assistant 
District Attorney 

Rape Crisis Advisory Board Member 
(non paid, volunteer position) 

New York State, Seventh Judicial District 
Rochester, New York 14614 
I am currently employed as a New York State 
Supreme Court Justice 

Families and Friends of Murdered Children and 
Victims of Violence Advisory Board Member (non 
paid, volunteer position) 



Military Service : Have you had any military sen/ice? If so, give particulars, 
including the dates, branch of service, rank or rate, serial number and type of 
discharge received. 

No. 



A^ OA/I Q8 



502 



Honors and Awards : List any scholarships, fellowships, honorary degrees, and 
honorary society memberships that you believe would be of interest to the 
Committee. 

1969 Pi Gamma Mu National Honor Society 

1983 Certificate of Appreciation - Brighton Police Department 

1985 Certificate of Merit for Representing Monroe County with 
Integrity and Conviction - Town of Irondequoit 

1985 Certificate of Recognition for Successful Prosecution of Robert 
P. Reilly - Gates Police Department 

1985 Distinguished Service Award - Kiwanis Club; Lakeshore- 
Rochester Chapter 

1987 Distinguished Service Award - Rosewood Club 

1987 Recognition for Successful Prosecution of Northeast Rapist - 
Rochester Police Department 

1988 Distinguished Service Award - Crime Stoppers 

1988 Special Recognition for Successful Prosecution of $500,000 
Armored Car Theft - New York State Police 

1990 Citizen of the Year - Rochester Police Locust Club 

1990 Person of the Year - Gannett Rochester Times Union 

1991 Honorary Deputy Chief of the Rochester Police Department 

1991 Exemplary Service Award - Monroe County Sheriffs Department 

1991 Recognition and Service Award for Outstanding Service - 
American Association of Retired Persons 

1991 Commendation on Behalf of Citizens of Monroe County for 
Successful Prosecution of Arthur J. Shawcross - Monroe County 
Legislature 



503 



1991 Certificate of Honor for Outstanding Service and Contribution to 
Law Enforcement - Association of Rochester Police and Area 
Law Enforcement Retirees 

1991 Letter of Recognition for Successful Prosecution of Arthur J. 
Shawcross - Frank Horton, House of Representatives 

1991 Certificate of Honor for Extraordinary Diligence in Preparation 
and Successful Prosecution of Arthur J. Shawcross - American 
Society for Industrial Security, Rochester Chapter 

1991 Letter of Recognition for Dedication and Commitment to Public 
Service - Louise M. Slaughter, Member of Congress 

1991 Letter of Recognition for Successful Prosecution of Arthur J. 
Shawcross - Alphonse M. D'Amato, United States Senate 

1991 Certificate of Appreciation - National Association of Women in 
Construction 

1992 Government Award - Greater Rochester Metro Chamber of 
Commerce 

1996 Recognition Award - Monroe County Magistrates Association 

1996 Distinguished Service Award - For Contribution to the Italian 
American Community - Counsel General of Italy 

1997 Certificate of Excellence - For support of the Rochester City 
School District's Weapons Diversion Program 

Bar Associations : List all bar associations, legal or judicial-related committees or 
conferences of which you are or have been a member and give the titles and dates 
of any offices which you have held in such groups. 

New York State District Attorney's Association 

Monroe County Bar Association 
Ethics Committee - 1986 
Courts Committee - 1990 
Academy of Law Board of Governors - 1995 
Chairperson, Evidence Institute - 1996 



504 



Association of Supreme Court Justices, Seventh Judicial District . 
1993 to present. 

Association of Justices of the Supreme Court of the State of New York. 
1993 to present. 

Rochester Inns of Court. 1995 to present. 

Jury Advisory Committee. 1996 to present. 

10. Other Memberships : List all organizations to which you belong that are active in 
lobbying before public bodies. Please list all other organizations to which you 
belong. 

I am not a member of any organization which is active in lobbying before 
public bodies. As to other organizations, I am a member of the Health Club 
of the Jewish Community Center. 

1 1 . Court Admission : List all courts in which you have been admitted to practice, with 
dates of admission and lapses if any such memberships lapsed. Please explain the 
reason for any lapse of membership. Give the same information for administrative 
bodies which require special admission to practice. 

Admitted to practice in State of New York, Appellate Division, Fourth 
Department - February 22, 1977 

Admitted to practice in United States District Court for the Western District of 
NewYori<-May9, 1977 

12. Published Writings : List the titles, publishers, and dates of books, articles, reports, 
or other published material you bave written or edited. Please supply one copy of 
all published material not readily available to the Committee. Also, please supply 
a copy of all speeches by you on issues involving constitutional law or legal policy. 
If there were press reports about the speech, and they are readily available to you, 
please supply them. 

"Prosecution of a Serial Killer", St. Vincent's Hospital, Melbourne, Australia, 
February, 1992, at Tab A 

Rochesterian Magazine "View from the Bench" series, January, 1994, at 
TabB 

As to speeches, I have included the following: 



505 



Speech given at the 66th Dante Ball of the Italian Women's Civic Club, 
September 28, 1971, at Tab C. 

Speech given at the Monroe County Columbus Day Celebration, October 4, 
1991, at Tab D. 

Speech given at the Safety Council Luncheon, May 14, 1993, at Tab E. 

Speech given at the Families and Friends of Murdered Children and Victims 
of Violence Dinner, May 27, 1994, at Tab F. 

Speech given at the 30th Firefighter of the Year Luncheon, October 13, 1995, 
at Tab G. 

Presentation on Cameras in the Courtroom as part of the American Justice 
Seminar at Fairport High School, April 26, 1997, at Tab H. 

1 3. Health : What is the present state of your health? List the date of your last physical 
examination. 

Excellent 
April 9, 1997 

14. Judicial OfTice : State (chronologically) any judicial offices you have held, whether 
such position was elected or appointed, and a description of the jurisdiction of each 
such court. 

1993 to present New York State Supreme Court Justice Seventh Judicial 
District 

I currently serve as a New York State Supreme Court Justice in the Seventh 
Judicial District. This is the only judicial position which I have held. I was 
elected to a 14-year term in November 1992 and took office in January 1993. 
The Supreme Court is the highest trial court in New York with general 
jurisdiction relating to both criminal and civil matters. Since taking office, I 
have been assigned to an IAS civil part, although I have presided over some 
criminal cases as well. As of May 26, 1997, 1 began a full time assignment to 
a criminal part. 



506 



15. Citations : If you are or have been a judge, provide: (1) citations for the ten most 
significant opinions you have written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or where your judgment was 
affirmed with significant criticism of your substantive or procedural rulings; and (3) 
citations for significant opinions on federal or state constitutional issues, together 
with the citation to appellate court rulings on such opinions. If any of the opinions 
listed were not officially reported, please provide copies of the opinions. 

15(1) 

(1). Citizens for a Safer Community; The Genesee Conservation League, 
Inc., The IVIonroe County Conservation Council; The New York State 
Rifle & Pistol Association, Inc.; The Shooters Committee on Political 
Education, Inc. (Monroe County Chapter); Leadloader Arms, Inc. d/b/a 
American Sportsman; Frederick Calcagno; Steven C. DeMallie; and 
Kurt Thomann - versus - The City of Rochester, New York; The Council 
of the City of Rochester, New York; Thomas Ryan, as Mayor of the City 
of Rochester, New York; Louis Kash, as Corporation Counsel for the 
City of Rochester, New York; Roy Irving, as Chief of Police of 
Rochester, New York; John Curran; Maxine Childress Brown; Wade 
Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla and 
Robert Stevenson, as Members of the Council of the City of Rochester, 
New York. 
Reported: 164 Misc 2d 822 



(2) In the Matter of the Investigation into the Rape of Jane Doe, John 
Horace, Respondent. 
Reported: 168 Misc 2d 981 



(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rivazfar, a Minor 
Over the Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under 
the Age of Fourteen Years - versus • Patricia An Rivsizfar n/k/a Patricia 
Ann Pafford and Ahmad Rivazfar 

Unreported: Opinion at Tab I. 

Modified _ AD2d _, 653 NYS2d 760, leave application to the New York 

Court of Appeals Granted NY2d 06/27/97 

(4) Keigh Beth Kenyon - versus - Security Insurance Company of Hartford 
(DPIC Companies) and William C. Larsen and William C. Larsen, P.E., 
P.C. d/b/a Larsen Engineers/Architects 

Reported: 163 Misc 2d 991, afTd 206 AD2d 980, Iv den 84 NY2d 813 



507 



(5) Maiden Lane Neighborhood Association; Frank Andolino; Emily 
Andoiino; Paul Andree; Gay Andree; Burnett Barrett; Beverly Barrett; 
Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Albert 
Buettner; Joyce Buettner; Gloria Carpenter; Robert Cross; Helene 
Cross; Edward Croteau; Joanne Croteau; Elaine Cummings; 
Christopher Curatalo; Catherine Curatalo; Charles Dennett; Mark 
Erbelding; Madeline Erbelding; Gerard Federation; Carole Federation; 
Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French; 
Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare; 
Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine 
Kurz; Roy LaForce; Mary Ann LaForce; Lawrence Little; Beveriy Little; 
John Meagher; Jean Meagher; Marjorie Monte; Albert Rehn; Mary Beth 
Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice 
Webber Till; Howard Weltzer; Beveriy Weltzer; Edward White; Ellen 
White; Frank Yanno; Carol Yanno; individually and Wegman's Food 
Markets, Inc. - versus - The Town of Greece; Roger Boily; Vincent B. 
Campbell; Raymond S. DiRaddo; Joan T. Korsch; and Charies J. 
Zicari, as and constituting the Greece Town Board; Maiden Associates; 
and Mark IV Construction Co., Inc. 
Unreported: Opinion at Tab J. 



(6) In the Matter of the Application of Anthony L. Jordan Health Center, 
Inc. - versus - Barbara Ann DeBuono, M.D., as Commissioner of Health 
of the State of New York, Brian Wing, as Acting Commissioner of Social 
Services of the State of New York, and Patricia Woodworth, as Director 
of the Budget for the State of New York. 
Unreported: Opinion at Tab K. 



(7) In the Matter of the Penfield Tax Protest Group;"Phyllis Dann, Jim and 
Carolyn Welton and Peter Sciortino, for Themselves and on Behalf of 
All Others Similariy Situated - versus - Linda Yancey, the Assessor of 
the Town of , The Town Board of the Town of Penfield and the Town of 
Penfield. 

Unreported: Opinion at Tab L, afPd 210 AD2d 901, app. dism. 85 NY2d 
903, Iv. den'd 86 NY2d 760 



(8) Lawrence J. Demarse; John Sussek, Jr. and Marie Sussek d/b/a Sussek 
Enterprises; Donald A. Robins; K.G. VanDine, M.D., P.C; Troser Group, 
Ltd,; Slocum Dickson Medical Group, P.C, Pension Fund; and Joseph 
Komler, III, Individually and as Limited Parents of Simulnet East 
Associates, a New York Limited Partnership, on behalf of themselves 



508 



and all other Limited Partners of Simulnet East Associates, similarly 
situated, and for the benefit and in the right of Simulnet East 
Associates - versus - Simulnet East Associates, a New York Limited 
Partnership; Simulnet, L.P.; Cable/Mac Services, Inc., A. Ross 
MacGregor; Vincent Laurendi; Donald E. Dillon; John B. Fisher; 
Waldon S. Hayes, Jr.,; Parijat Capital, Ltd.; David P. Ott; J. Anthony 
DiGuilio; Ashvin J. Zaveri; Bytex Corporation; Simulnet Corporation; 
Jerry Nelson; and Jonathan S. Edwards. 
Unreported: Opinion at Tab M. 



(9) Iqbal Singh - versus - John Karle; Richard Passero; Ram Shrivastava; 
William Larsen, P.E., d/b/a Larsen Engineers. 

Unreported: Opinion at Tab Mc, afTd AD2d 07/03/97, 1997 WL 

378479 



(10) Richard D. Castle; William Gowgill; James C. Duffus; J. Allen Gray; 
John W. Handy; James T. Henderson; William F. Holly; Jean Fox Lee; 
Frank E. Luellen, Jr.; Douglas Martin; Newtin Y. Robinson; Robert F. 
Sykes; Herbert W. Vandenbrul; Nora Ward as Executor of the Estate of 
Hawley Ward; Jessica W. Warren; Eugene S. Wetmore - versus- 
Alexander and Alexander Services, Inc. 
Unreported: Opinion at Tab N. 



15(2) 

(1) Funkv. Barry 

The oral decision in Funk v. Barry, which granted plaintiffs motion 
requesting that the Court sign a judgment in this case and denied 
defendant's cross-motion to dismiss the action as abandoned, was 
reversed by the Appellate Division, Fourth Department in an Opinion 
reported at 222 AD2d 1017. 

The Appellate Division then denied plaintiff's motion for leave to appeal 
by order reported at 1996 WL 192891. However, the Court of Appeals 
granted plaintiff's subsequent motion for leave by order reported at 88 
NY2d 809. 

That Court reversed the decision of the Appellate Division and 
reinstated the judgment in favor of the plaintiff in an opinion reported 
at 89 NY2d 364. A transcript of my oral opinion is included at Tab O. 



509 



(2) Marker v. Rochester City School District, et al 

The decision in Marker v. Rochester City School District, et al, denying 
defendants' summary judgment motion, was reversed by the Appellate 
Division, Fourth Department, in an opinion dated July 3, 1997, reported 

at AD2d , 1997 WL 373747. A copy of my decision is included 

at Tab P. 



(3) Rennoldson v. Voipe Realty Corp., et al. 

The decision in Rennoldson v. VoIpe, et al. granting plaintiffs motion 
for summary judgment on a Labor Law section 240(1 ) cause of action 
and denying defendants' motion for summary dismissing that cause 
was reversed by the Appellate Division, Fourth Department in an 
opinion reported as Rennoldson v. James J. VoIpe Realty, et al., 216 
AD2d 912. 

The parties settled the case while plaintiffs motion for leave to appeal 
was pending. The application for leave was dismissed. That dismissal 
was reported at 86 NY2d 837. A copy of my written decision is included 
at Tab Q. 



(4) Schiffman v Spring, et al. 

The order denying defendants' summary judgment motion was 
reversed by the Appellate Division, Fourth Department in an opinion 
reported at 202 AD2d 1007. A copy of my order is included at Tab R. 



15(3) 

(1) Citizens for a Safer Community; The Genesee Conservation League, 
Inc., The Monroe County Conservation Council; The New York State 
Rifle & Pistol Association, Inc.; The Shooters Committee on Political 
Education, Inc. (Monroe County Chapter); Loadloadcr Arms, Inc. d/b/a 
American Sportsman; Frederick Calcagno; Steven C. DeMallie; and 
Kurt Thomann - versus - The City of Rochester, New York; The Council 
of the City of Rochester, New York; Thomas Ryan, as Mayor of the City 
of Rochester, New York; Louis Kash, as Corporation Counsel for the 
City of Rochester, New York; Roy Irving, as Chief of Police of 
Rochester, New York; John Curran; Maxine Childress Brown; Wade 
Norwood; Tim Mains; Benjamin Douglas; Lois Giess; Nancy Padilla and 
Robert Stevenson, as Members of the Council of the City of Rochester, 



510 



New York. 

Reported: 164 Misc 2d 822 



(2) In the Matter of the Investigation into the Rape of Jane Doe, John 
Horace, Respondent. 
Reported: 168 Misc 2d 981 



(3) Gregory J. Mott, as Guardian Ad Litem for Sayer M. Rivazfar, a Minor 
Over the Age of Fourteen Years, and Arash P. Rivazfar, a Minor Under 
the Age of Fourteen Years - versus - Patricia An Rivazfar n/k/a Patricia 
Ann Pafford and Ahmad Rivazfar 

Unreported: Opinion at Tab I. 

Modified _ AD2d _, 653 NYS2d 760, leave application to the New York 

Court of Appeals Granted NY2d 06/27/97 

(4) Maiden Lane Neighborhood Association; Frank Andolino; Emily 
Andolino; Paul Andree; Gay Andree; Burnett Barrett; Beverly Barrett; 
Richard Bauer; Julie Bauer; James Borden; Patricia Borden; Albert 
Buettner; Joyce Buettner; Gloria Carpenter; Robert Cross; Helene 
Cross; Edward Croteau; Joanne Croteau; Elaine Cummings; 
Christopher Curatalo; Catherine Curatalo; Charies Dennett; Mark 
Erbelding; Madeline Erbelding: Gerard Federation; Carole Federation; 
Harry Flaherty; Gail Flaherty; Stephen French; Louise S. French; 
Sidney Gear; Laura Gear; John Hamer; Sharon Hamer; Richard Hare; 
Marilyn Hare; Thomas Kenny; Betty Kenny; Richard Kurz; Catherine 
Kurz; Roy LaForce; Mary Ann LaForce; Lawrence Little; Beveriy Little; 
John Meagher; Jean Meagher; Marjorie Monte; Albert Rehn; Mary Beth 
Rehn; Miles VanBuren; Cindy VanBuren; Elizabeth VonBacho; Alice 
Webber Till; Howard Weltzer; Beveriy Weltier; Edward White; Ellen 
White; Frank Yanno; Carol Yanno; individually and Wegman's Food 
Markets, Inc. - versus - The Town of Greece; Roger Boily; Vincent B. 
Campbell; Raymond S. DiRaddo; Joan T. Korsch; and Charies J. 
Zicari, as and constituting the Greece Town Board; Maiden Associates; 
and Mark IV Construction Co., Inc. 

Unreported: Opinion at Tab J. 

(5) In the Matter of the Application of Anthony L. Jordan Health Center, 
Inc. - versus - Barbara Ann DeBuono, M.D., as Commissioner of Health 
of the State of New York, Brian Wing, as Acting Commissioner of Social 
Services of the State of New York, and Patricia Woodworth, as Director 
of the Budget for the State of New York. 

Unreported: Opinion at Tab K. 



511 



(6) In the Matter of the Penfleld Tax Protest Group, Phyllis Dann, Jim and 
Carolyn Welton and Peter Sciortino, for Themselves and on Behalf of 
All Others Similarly Situated - versus - Linda Yancey, the Assessor of 
the Town of Penfield, The Town Board of the Town of Penfield and the 
Town of Penfield. 
Unreported: Opinion at Tab L, afTd 210 AD2d 901 



(7) In the Matter of the Application of Karen Noble Hanson, Petitioner, v. 
Marguerite L. Relin and Ronald Starkweather, Commissioners of the 
Monroe County Board of Elections and Kevin Murray, Respondents. 
For a Judgment invalidating the designating petitions filed with the 
Board of Elections, nomination Kevin B. Murray, Respondent, as a 
Democratic candidate for Mayor of the City of Rochester, State of New 
York, in a primary election to be held on September 14, 1993. 
Unreported: Opinion at Tab S. 



(8) Sabrina Johnson, Plaintiff, v. City of Rochester, Defendant. 
Unreported: Opinion at Tab T. 



16. Public Office : State (chronologicaily) any public offices you have held, other than 
judicial offices, including the terms of service and whether such positions were 
elected or appointed. State (chronologically) any unsuccessful candidacies for 
elective public office. 

1977 - 1992 I held the appointed position of Assistant District Attorney 

in the Monroe County District Attorney's Office in 
Rochester, New York. 

November 1991 I ran unsuccessfully for the position of New York State 
Supreme Court Justice, 7th Judicial District. 



512 



17. Legal Career : 



a. Describe chronologically your law practice and experience after 
graduation from law school including: 

1 . whether you served as clerk to a judge, and if so, the name 
of the judge, the court, and dates of the period you were a 
clerk; 

I did not serve as a Clerk to a Judge. 

2. whether you practiced alone, and if so, the addresses and 
dates; 

I did not practice alone. 

3. the dates, names and addresses of law firms or offices, 
companies or governmental agencies with which you have 
been connected, and the nature of your connection with 
each; 

1977-1992 

Monroe County District Attorney's Office 

201 Hall of Justice 

Rochester, New York 14614 

I served as an Assistant District Attorney. 

From 1984 through 1992, I served as First Assistant 

District Attorney 

1993 - Present 

New York State Supreme Court Justice 

400 Hall of Justice 

Rochester, New York 14614 

In November, 1992, 1 was elected to serve as a New York 

State Supreme Court Justice in the Seventh Judicial 

District for a 14 year term and took office in January 1993. 

b. 1 . What has been the general character of your law practice, 

dividing it into periods with dates if its character has changed 
over the years? 

My entire career as a practicing attorney from 1977 
through 1992 was spent in the Monroe County District 
Attorney's Office. 



513 



2. Describe your typical former clients, and mention the areas, if 
any, in which you have specialized. 

As a Monroe County Assistant District Attorney, I 
prosecuted cases on behalf of the People of the State of 
New York. My area of specialization was criminal law, and 
I routinely interacted with both victims of crimes and 
witnesses to crime. 

c. 1 . Did you appear in court frequently, occasionally, or not at all? 
If the frequency of your appearances in court varied, describe 
each such variance, giving dates. 

As an Assistant District Attomey, I frequently appeared in 
court. 

2. What percentage of these appearances was in: 

(a) federal courts; 0% 

(b) state courts of record; 100% 

(c) other courts. 0% 

3. What percentage of your litigation was: 

(a) civil; 0% 

(b) criminal. 100% 

4. State the number of cases in courts of record you tried to 
verdict or judgment (rather than settled), indicating whether 
you were sole counsel, chief counsel, or associate counsel. 

I tried to verdict approximately 100 felony cases where I 
was sole trial counsel. I was also sole trial counsej on 
numerous misdemeanor and violation cases. 

5. What percentage of these trials was: 

(a) jury; 95% 

(b) non-jury. 5% 

1 8. Litigation : Describe the ten most significant litigated matters which you personally 
handled. Give the citations, if the cases were reported, and the docket number and 
date if unreported. Give a capsule summary of the substance of each case. 
Identify the party or parties whom you represented; describe in detail the nature of 
your participation in the litigation and the final disposition of the case. Also state 
to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges before 



514 



whom the case was litigated; and 
(c) the individual name, addresses, and telephone numbers of co- 
counsel and of principal counsel for each of the other parties. 



In each case, I was sole trial counsel for the People. 

1. People V Arthur Shawcross 

September 17, 1990 - December 13, 1990 

Indictment #058 

Filed 01/23/90 

Murder in the Second Degree (10 counts) 

Court: Monroe County Court 

Presiding Judge: Honorable Donald J. Wisner 



Defense Attorneys: David A. Murante, Esq. 

700 Wilder Building 
Rochester, NY 14614 
(716)232-6830 

Thomas J. Cocuzzi, Esq. 
700 Wilder Building 
Rochester, NY 14614 
(716) 232-6830 

Reported: 192 AD2d 1128; Iv den 82 NY2d 726 

SUMMARY: 

Shawcross, a serial killer, was responsible for the deaths 
of 1 1 women. He was on parole to the Rochester area 
having been convicted 18 years earlier for the sexual 
assault and slaying of an 8-year-old girl. At that time, 
Shawcross also admitted to the death of a 10-year-old 
boy. 

The victims in Rochester included prostitutes and street 
people, ranging in age from 22 to 59 years old. At trial, 
Shawcross claimed an insanity defense and offered an 
expert witness. Dr. Dorothy Otnow Lewis. Dr. Lewis 
claimed that Shawcross, due to physical and sexual abuse 
that he suffered as a child, as well as a brain injury that 
resulted in complex partial seizures, was not responsible 



515 



for his conduct in killing the women. Dr. Lewis submitted 
tapes of interviews with Shawcross which she maintained 
were conducted under hypnosis. It was also maintained 
that Shawcross cannibalized two of his victims in 
Rochester, and previously cannibalized Viet Cong women 
while serving in the U.S. military in Viet Nam. The 
cornerstone of Dr. Lewis' defense of Shawcross was her 
premise that he suffered from dissociative states akin to 
multiple personalities. The prosecution countered with Dr. 
Park Dietz, an expert in forensic psychiatry, who 
challenged Dr. Lewis' findings and offered the opinion that 
Shawcross was, at best, an anti-social personality. In 
December 1991, Shawcross was found guilty charged. 

2. People V Robert Ahalt and Carl "Butch" Campbell 
January 19, 1988 - March 9, 1988 
Indictment #834 
Filed 11/13/86 

Murder in the Second Degree (11 counts); Arson in the 
Second Degree; Arson in the Third Degree (2 counts) 

Court: New York State Supreme Court 

Presiding Judge: Honorable Donald J. Mark 

Defense Attorneys: Culver K. Barr, Esq. 

1025 Reynolds Arcade Building 
Rochester, NY 14614 
716-454-7672 

Felix V. Lapine, Esq. 
One East Main Street 
Suite 711 

Rochester, NY 14614 
716-454-6690 

Reported: 

People v Ahalt, 139 Misc 2d 863; 170 AD2d 982, Iv 
den 78 NY2d 953 

People V Campbell, 139 Misc 2d 863; 170 AD2d 982, 
Iv den 78 NY2d 963 

SUMMARY: 

Ahalt and Campbell were convicted of murdering five 
people during a 48-hour period. Among their victims were 



516 



three people, one male aged 56 and two females, aged 74 
and 75, all who were bludgeoned to death. The following 
day they killed a 28 year old female. Prior to killing her, 
the defendants forced her to ingest glass, broke bottles in 
her face, and stabbed her seventh-month-old fetus with a 
coat hanger. Her body was mutilated after her murder. 
That same day at a different location, another female, 
acquainted with the defendants, was beaten to death by 
Ahalt. Following all the homicides, Ahalt and Campbell 
attempted to cover their crimes by setting the murder sites 
on fire. In the second double-jury trial ever to be held in 
New York State, both men were convicted of multiple 
counts of murder. Ahalt was found guilty on March 9, 
1988 and Campbell was found guilty on March 10, 1988. 

3. People V Richard Mainprize, Jr. 
March 15, 1984 - March 27, 1984 
Indictment #907 
Filed 12/30/82 
Murder in the Second Degree (3 counts) 

Court: Monroe County Court 

Presiding Judge: Honorable Charles T. Maloy 

Defense Attorney: Vincent Rizzo, Esq. 

200 Hall of Justice 
Rochester, NY 
716-418-5616 

Reported: 134 AD2d 943, Iv den 71 NY2d 899 

SUMMARY: 

Mainprize was convicted of murder in the death of Diane 
Marlowe, a 22-year-old female. Mainprize beat and 
strangled Ms. Marlowe. After killing her, Mainprize placed 
Ms. Mariowe's naked body in an abandoned refrigerator. 
At trial, Mainprize claimed insanity, saying he watched a 
"black form" perform the homicide acts. The insanity 
defense was rejected. Mainprize was found guilty of 
murder in the second degree on March 27, 1984. 



517 



4. People V. Nathaniel Lee Jones 

September 2, 1987 - September 21, 1987 
Indictment #918 
Filed 12/23/86 

Burglary in the First Degree (10 counts); Rape in the First 
Degree (12 counts); Sexual Abuse in the First Degree (5 
counts); Attempted Rape in the First Degree (4 counts); 
Robbery in the First Degree; Sodomy in the First Degree 
(4 counts); Petit Larceny 

Court: Monroe County Court 

Presiding Judge: Honorable Donald J. Wisner 

Defense Attorney: Norman A. Palmiere, Esq. 

205 St. Paul St. 
Suite 300 

Rochester. NY 14604 
716-232-6144 

Reported: 152 AD2d 984, Iv den 74 NY2d 812 

SUMMARY: 

Jones, who became known the "Northeast Rapist", was 
involved in 10 separate incidents of burglary, rape, 
sodomy and sexual abuse that occurred over a 9-month 
period from April 1986 through December 1986. His 
victims ranged in age from 9 to 26. On September 21, 
1987, he was convicted of 37 counts of sexual assault and 
burglary. 

5. People V Anthony J. Salem, Jr. 
July 11, 1988 -July 18, 1988 
Indictment #734 
Filed 10/08/87 

Burglary in the First Degree (5 counts); Burglary in the 
Second Degree; Rape in the First Degree (4 counts); 
Sodomy in the First Degree (11 counts); Sexual Abuse in 
the First Degree (12 counts); Petit Larceny (4 counts) 

Court: New York State Supreme Court 

Presiding Judge: Honorable Eugene W. Begin 



518 



Defense Attorney: Thomas J. Kidera, Esq. 

lONorthFitzhughSt. 
Rochester, NY 14614 
716-428-5642 

Reported: 167 AD2d 840, Iv den 77 NY2d 911 

SUMMARY: 

Salem was a serial rapist who was convicted of burglary, 
rape, sodomy and sexual abuse. Over a six-month period, 
he sexually assaulted six different victims who ranged in 
age from 24 to 46. On July 18, 1988, Salem was found 
guilty of a 37-count indictment. 

6. People V Bruce W. Walden 

August 25, 1986 - September 4, 1986 

Indictment #877 

Filed 11/27/85 

Murder in the Second Degree (3 counts) 

Court: New York State Supreme Court 

Presiding Judge: Honorable Donald J. Mark 

Defense Attorney: Edward F. Scanlan, Esq. 

10 North Fitzhugh St. 
Rochester, NY 14614 
716-428-5210 

Reported: 148 AD2d 971, Iv den 75 NY2d 819 

SUMMARY: 

Walden was convicted of murder in the death of 11 -year- 
old Sunshine McKendree. The child's body was found on 
an abandoned railroad track, nude from the waist down, 
with a red scarf wrapped tightly around her neck, dead 
from strangulation. On September 4, 1986, Walden was 
convicted of murder in the second degree for intentionally 
killing the child during a rape attempt. 



519 



7. People V David R. Larson 
September 26, 1985 - October 10, 1985 
Indictment #191 

Filed 03/29/84 

Murder in the Second Degree 

Court: New York State Supreme Court 

Presiding Judge: Honorable David O. Boehm 

Defense Attorney: Michael Couture, Esq. 

Unknown - Moved out of State 

Reported: 145 AD2d 976, Iv den 73 NY2d 1017 

SUMMARY: 

Larson was convicted of murder in the death of Tracy 
Kotlik, a 14-year-old female. Larson killed the girt by 
slashing and stabbing her 18 times with a knife. Larson 
submitted an intoxication defense at trial, but it was 
rejected by the jury. On October 10, 1985, Larson was 
found guilty of murder in the second degree. 

8. People V Thomas Taylor and Thomas Torpey 
Indictment #433 

Filed 06/10/82 

Murder in the Second Degree 

Court: New York State Supreme Court 

Presiding Judge: Honorable Robert P. Kennedy 

Defense Attorneys: Robert H. Murphy, Esq. 

6461 Main St. 
Williamsville, NY 14221 
716-634-6750 

David A. Murante, Esq. 
700 Wilder Building 
Rochester, NY 14614 
716-232-6830 

Reported: 

Taylor: 1 55 AD2d 980, Iv den 75 NY2d 81 8, cert 

den'd Taylor v. New York, 496 US 926 
Torpey: 1 68 AD2d 91 6. Iv den 77 N Y2d 967 



520 



SUMMARY: 

Taylor and Torpey, members of an organized crime 
faction, were convicted of murder in the second degree in 
connection with the shotgun slaying of John Fiorino. 
Taylor and Torpey contracted a hitman to kill Fiorino, who 
was a member of a rival mob. Both defendants were 
found guilty on March 12, 1986 



9. People V Robert Reilly 

October 21, 1985 - November 11, 1985 

Indictment #004 

Filed 01/11/85 

Murder in the Second Degree (4 counts) 

Court: Monroe County Court 

Presiding Judge: Honorable Andrew G. Celli 

Defense Attorney: Thomas J. Kidera, Esq. 

10 North Fitzhugh St. 
Rochester, NY 14614 
716-428-5642 

Reported: 155 AD2d 961, Iv den 75 NY2d 923 

SUMMARY: 

Reilly, 43, was convicted of four counts of murder in 
connection with the death of his wife, 31, and his three 
children, ages 3, 6 and 8. Reilly killed his wife by cutting 
her neck and striking her with a hammer. Then he 
drowned his three children in the upstairs bathtub. At 
trial, Reilly claimed insanity, saying he was not 
responsible for his conduct due to major depression. The 
insanity defense was rejected and on November 8, 1985, 
Reilly was found guilty of four counts of murder in the 
second degree. 



521 



10. People V Kurtis Brown, Thaxton Hamlin and Billy Joe 
Green 

Indictment #088 

August 20, 1984 - September 4, 1984 
January 3, 1989 - January 10, 1989 (retrial of Kurtis Brown 
only) 

Indictment #088 
Filed 02/08/83 
Murder in the Second Degree (2 counts) 

Court: New York State Supreme Court 

Presiding Judge: Honorable Eugene W. Begin 

Defense Attorneys: Lawrence J. Andolina, Esq. 

130 East Main St. 
Rochester, NY 14614 
716-232-4440 

Sidney T. Farber, Esq. 
2140 Penfield Rd. 
Penfield, NY 14526 
716-377-6990 

Michael T. DiPrima, Esq. 
2024 West Henrietta Rd. 
Unit 3-G 

Rochester, NY 14623 
716-292-0170 

Reported: 

Brown: 124 AD2d 973, rev 71 NY2d 750, 170 AD2d 
955, Iv den 78 NY2d 962 

Hamlin: 131 AD2d 200, afTd 71 NY2d 750 

Green: 147 AD2d 955 

SUMMARY: 

Brown, Hamlin and Green were convicted of murdering 
Brown's 21 -year-old wife, Susan. Brown plotted to have 
Hamlin and Green kill Mrs. Brown to obtain the proceeds 
from her $100,000 insurance policy. Brown arranged an 
alibi for himself while Hamlin and Green carried out the 
killing by stabbing the victim more than 30 times and 



522 



hitting her with a cane. On September 4, 1984, at! three 
were convicted of murder in the second degree. Brown's 
conviction was reversed because of a Bruton issue. 
Specifically, subsequent to the trial, retroactive effect was 
given to an appellate decision limiting interlocking 
confessions. However, Brown was retried and again 
convicted of murder in the second degree on January 10, 
1989. 

19. Legal Activities : Describe the most significant legal activities you have pursued, 
including significant litigation which did not progress to trial or legal matters that did 
not involve litigation. Describe the nature of your participation in this question, 
please omit any information protected by the attorney-client privilege (unless the 
privilege has been waived.) 

During my tenure as First Assistant District Attorney, I was on-call 24 hours 
a day, 7 days a week for all homicides that occurred within Monroe County. 
It was my responsibility, if called, to report to the scene and act as a legal 
advisor to the investigating police agency. I would estimate that I responded 
to 250 to 300 homicide scenes, and at various times I assisted the police in 
drafting search warrants, conducting lineups, and in making decisions 
relating to arrest and probable cause. 

Further, as First Assistant, I had supervisory and administrative 
responsibilities in the office and acted as the District Attorney in his absence 
from the County. I also handled a number of cases that resulted in pleas prior 
to trial and was assigned several Grand Jury investigations. 

Finally, I have provided legal instruction on various occasions. I was a 
volunteer instructor at a trial advocacy seminar, presented by the Monroe 
County Bar Association and sponsored by the National Institute for Trial 
Advocacy. Also, in conjunction with my responsibilities as First Assistant 
District Attorney, I provided recruit instruction and in-service training for 
police officers at the Monroe Community College Criminal Justice and Public 
Safety Training Center. Additionally, I have provided training for volunteer 
counselors at Rape Crisis. Most recently, I chaired the Evidence Institute, 
sponsored by the Monroe County Bar Association. 



523 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, amounts and dates of ail anticipated receipts from deferred income 
arrangements, stock, options, uncompleted contracts and other future benefits 
which you expect to derive from previous business relationships, professional 
services, firm memberships, former employers, clients, or customers. Please 
describe the arrangements you have made to be compensated in the future for any 
financial or business interest. 

Based on my 20 years of public service, I will be eligible at age 62 to receive 
retirement benefits from the New York State Retirement System. The yearly 
amount would be approximately 40% of my current salary. As an Assistant 
District Attorney, I participated in a deferred compensation plan through the 
County of Monroe, and as a Supreme Court Justice, I participated in a 
deferred compensation plan through the State of New York. As of June 30, 
1997, the fund value of my County deferred compensation plan was 
$124,365.83. As of that same date, the value of my State deferred 
compensation plan was $44,832.42. I was eligible to receive the monies on 
deposit in the County plan when I left County employment. However, I 
decided to maintain the account. With respect to the monies on deposit in the 
State deferred compensation plan, I would be eligible to receive those when 
I leave State employment. Prior to the institution of a deferred compensation 
plan in Monroe County, I contributed to an IRA. As of June 30, 1997, the value 
of that IRA was $16,214.00. 

Explain how you will resolve any potential conflict of interest, including the 
procedure you will follow in determining these areas of concern. Identify the 
categories of litigation and financial arrangements that are likely to present potential 
conflicts-of-interest during your initial service in the position to which you have been 
nominated. 

Since I have served as a New York State Supreme Court Justice for the last 
four and a half years, I don't believe that there are any such potential conflicts 
of interest. However, I will, of course, follow the guidelines of the Code of 
Judicial Conduct. 

Do you have any plans, commitments, or agreements to pursue outside 
employment, with or without compensation, during your service with the court? If 
so, explain. 

I do not. 



524 



4. List sources and amounts of all income received during the calendar year preceding 
your nomination and for the current calendar year, including all salaries, fees, 
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items 
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure 
report, required by the Ethics in Government Act of 1978, may be substituted here.) 

Please see attached copy of my Financial Disclosure Report. 

5. Please complete the attached financial net worth statement in detail (Add schedules 
called for). 

Please see attached Net Worth Statement. 



Have you ever held a position or played a role in a political campaign? If so, please 
identify the particulars of the campaign, including the candidate, dates of the 
campaign, your title and responsibilities. 

Other than my own campaigns for New York State Supreme Court in 1991 and 
1992, 1 have not. 



525 



AO-10M 



FINANCIAL DISCLOSURE REPORT 

Nomination Report 



Report Rttnind by (ft* EtNa 
Ratom Ac(oH9B9.PubLNo. 
101-194, NonmbtrX, 1»t» 
(S U.S.C. Afip.4.Stc. 101-112) 



1. Pcnon Reporting (LtsI naim, list. wUdh UlaO 
Siraguea, Charles J. 



2. Court or Organlzitlon 

US District Court/Western NY 



J. Data of Report 
07/16/1997 



4.'nii« (A/SdtlBJudgeskKlcalfellnor 

sf*>r sMia; mti^stma Judgas kxtcaf 
l\ji-orptrt-«ma) 

U.S. District Court Judge 



t. Report Typo (check type) 

X Ncnilnation. Date 07/15/1997 



e. Reporting Pertod 

01/01/1997 

to 
06/30/1997 



7. Ctumlien or Olllce Address 
400 Hall of Justice 
Rochester, New York 14614 



I. On the iMSis of the Inrormatlon contained In this Report and any 
modifications pertaining tfiereto. It Is In my opinion. In compliance 
with appilcatile laws and regulations. 



Reviewing Officer 



IMPORTANT NOTES: Tha Instructions accompanying this toim must b« tokwed. Completa al parts, 
checking ttta NONE box for aactj section whan you have no raportabta htonnation. Sign on tha last page. 



NAME OF ORGANIZATION / ENTITY 



I. POSITIONS (Raportinglndvlduatonly:seapp.9-13oflnstnjctions} 

POSITION 

NONE (No reportable positions.) 

'■ Advisory Board Member Families & Friends of Murdered Children 



and Victims of Violence 



II. AGREEMENTS (Reporting in<fvidualoi^.saapp.14-17 of InstnicHons.) 

DATE PARTIES AND TERMS 



n 



NONE (No reportable agreements ) 
^ Pension 



NYS Retirement System 



(eligible to receive benefits at age 62) 



NON-INVESTMENT INCOME 
DATE 



D 



(Reporting tndividuat and spouse; see pp. 1S-25 of Instnjctions.} 
PARTIES AND TERMS 



NONE (No reportable nofrirrvestmenl income.) 

1 1996 State of New York-Salary/NYS Supreme Court Justice 



GROSS INCOME 

(yous, not spouse's) 

$ 112,430.00 



1995 



State of New York-Salary/NYS Supreme Court Justice 



112,287.00 



526 



FINANCIAL DISCLOSURE REPORT 



Name of Penon Repoctiqg 

Siragusa, Chcurles J. 



DaUoTBcpca 

07/16/199 



IV. REIMBURSEMENTS and GIFTS - ttanvoitatiaa, lodiiiK. boi, atatmanat. 

(btebida tkoM to Mpous* ait^ dtptndau ABdrtn; MM At parmihttteaU '(S}' and '(PC)' to btdtoau rtpontbU nitnbttntmtno and g^ rtetived bytpoiat 
ai^ d^tamUm chddrtn, r€sp*tStvttf. Sttpp. i6-J9cfbatnictionj.) 



D 



SOURCE 

NONE (No iDcb reportable reuDbunemcda or gift*) 



DESCRIPTION 



V. OTHER GIFTS 

0iclud€S thore to xpo%at and dependent children; use the parerUheticats '(S)' and '(DC)' to indicate other gifts received by spouse and dependent children, 
rapecttvefy. See pp. 30-33 of Instructions.) 



D 



SOURCE 

NONE (No Bich reportable gifts) 



DESCRIPTION 



VI. LIABILinES 

(Includes those of ^>ou5e and dependent children; indicate v^iere applicable, person rtsponsible for tiabiUty by using Ae parenthetical ' (S)' for separtOe 
liability offfte spouse. '(J)' for Joint liability of reporting individual and spouse, and 'ff)Q*for liability of a dependent chUd. See pp. 34-36 of btstructimu.) 



□ 



CREDITOR 

^ I NONE (No reportable lUbilitiea) 



DESCRIPTION 



VALUE CODE* 



> VALCX)DESJ-$13,(XX)oclesa K-$1S,001-S30.0(» L-UO,0OI lo {100,000 M-S100.00I-$23O,0OO N-$MO.OOl-MOO,000 

0-$500,00l-$t,000,000 PI-J1,000,OOI-$},000,000 P2-U,OaO,OOI-S2S,000,000 P3-S25,000.00l-U0,000,000 P4"«0.000.001ocnio»B 



527 



FINANC3AL. DISCLOSURE HEPORT | Slraguaa, Charles J. 



Dau of Report 
07/16/1997 



- Bfamt, taltit. tmaaetlcni QncakUi man efjpaat md 

Vn, Page 1 INVESTMENTS and TRUSTS J^pmdaidaun^ s-pp.sr-UefiatnKticm.) 


A. 
DcKii{i6aaorAncti 

ttaeaUidttntppUcatU. mmtrof 

'(Ji'jbrJcHmmtnh^ efrtpcrtbif 
InHiUmlmdtpoia: •(5)'/ortip- 


a 


C 

OfOSSTahie 
at cad or 
Rpocdat 
pcdod 


D. 

"Raam Ih ml ouilJ<4 w|KMUm pcood 


0) 

AlK. 

Co<lo 

(A- 


CO 

•I>p. 

(0^.. 
<Urkki>d. 
mMor 
boeroO 


0) 
VakM 
Coda 
O-T) 


TO 

Value 

Mclhod 

Coda 

(Q-W) 


0) 

■Tn* 

•loj.aell, 
lioiO 


VMcrcn^b^Omiam 


Bale: 


(3) 

Vitoa 

Code 


W 
OalD 
Coda 
(AH) 


CJ) 
Idcoliqtor 


D«J 


Ofpdvala 
tmuadioo) 


NONE <■>» ttpojublo iiiooiiio,atMa, or 
tnnnrrtnm) 




















1 H4T Bank 


B 


interest 


J 


T 


EXEMPT 










2 MtT Bank 


A 


Interest 


J 


T 


EXmPT 










3 Herrill Lynch (IRA) 










EXEMPT 










4 — Alliance Income Builder 


B 


Dividend 


J 


T 


EXEMPT 










5— ML Global Allocation - B 


B 


Dividend 


J 


T 


EXEMPT 










6 Merrill Lynch 










EXEMPT 










7 Ready A^aet Trust 


A 


Dividend 


J 


T 


E3CEHET 










8 —Putnan Utilities Growth < 
Income Fund Class A 


A 


Dividend 


J 


T 


EXEMPT 










9 — Putnam Global Growth Fund 
Class A 


A 


Dividend 


J 


T 


EXEMPT 










10 — HFS Municipal Income FD Class B 


A 


Dividend 


J 


T 


EXEMPT 










11 Work Recovery New Common Stock 




None 


J 


T 


EXEMPT 










12 Deferred Compensation PEBSOO 










EXEMPT 










13 —Putnam Investors Fund Class A 


B 


Dividend 


K 


T 


EXEMPT 










H —American Century 20th Century 
Ultra 




None 


K 


T 


EXEMPT 










15— Fidelity Equity Income 


C 


Dividend 


K 


T 


EXEMPT 










16 — Tenpleton Foreign Fund Class I 


A 


Dividend 


K 


T 


EXEMPT 










17 Deferred Compensation Copeland 
Companies 










EXEMPT 










llncXlainCoilecA-tl.OOOorkss B-S1.00I-$2,500 0-Sl^l-ii,OV> D-J5,0Ol-$15.0O0 E-J15.0OI-S3O.OOO 
(ColBl,D4) F-»0.001-$IO0.aO0 0-$ 100.001 -$1,000,000 H1-S1,000,001-S3,000,000 H2-{5,000.00l croons 


IValCoies: J-$tS,000 or Ics K-J13.001-S50.000 U-U0,001-{100,000 M-S100,C0I-a}0,000 N-«30,OOI-S500,000 
(ColCl.D3) O-JJ00,001.Jl,000,000 P1-JI,000,001-M,000,000 P2-M.000,001-«3.000,000 PJ-S«.000,001-MO,000,000 P4-«0,000,001 ormert 


3V.lMlhCo.fa: Q-Aj>praml R-Co« (ital olila ooly) S-A«nma< T-Osli*tafa« 
(Cold) U-BookVito. V-Ollier W-Ej«im««d 



528 1 



FINANCIAI. DISCLOSURE REPORT 



Slragusa, Charles J. 



DtfoofKepoct 
07/16/1997 



Vn. Page 2 INVESTMENTS and TRUSTTS Jtpaidaiddu^ sttpp-n^eftumaiaa.) 



A. 

Ol > ll|WOil of A««*i» 

ti^cauwlitn appBeatU, OMitr ef 
tuctutlysAitllupannaietlcal 

iHUMmlmdipaa: •0)'M'V- 

Plaa 'CO' iffter tach aael 
txaiflfnom prior JlicUmtn. 


B. 
lacooM 


C. 

Onaanhw 
•t cad of 

pedod 


D. 


0) 
AnS. 
Code 
<A- 


(2) 
Type 

dMdend. 

rcKor 

lalereit) 


0) 

Vahw 
Coda 
(^P) 


CD 

Valua 

»fol>ad 

Coda 

(Q-W) 


0) 

firp. 

(e.«.. 

boy. lell, 

nkerser, 

redcsip- 

lioa) 


If Boc oeniiit 6om dlacloiun 1 


C2) 
Dale: 


(3) 

Vaba 
Code 
d-P) 


(O 
Oaln 
Code 
(AH) 


(3) 

Uesti^of 
buyec/ieDer 
(ifprivale 
tramtaftintl) 


D«7 


NONE (no reportable iacome^usett, or 
tnouctioiu} 




















18 — Stable Income Fund 


A 


Dividend 


K 


I 


EXEMPT 










19 — Janus Fund 


A 


Dividend 


J 


T 


EXEMPT 










20 — TRP Equity Incoiae Fund 


B 


Dividend 


J 


T 


EXEMPT 










21 —TRP International Stock 


A 


Dividend 


J 


T 


EXEMPT 










22 —Vanguard GNMM 


A 


Dividend 


J 


T 


EXEMPT 


























































































































































































































































|lDo*aiis Codec A-tl,000 or ks &-Sl,001-S2.JOO OQ^l-tJ.OOO D-S],001-$13,000 E<l),OOI-t}0.000 
(ColBI,D4) F-S30^1-J100.000 O-J100,001-JI/K»,000 Hl-»1.000.001-«.000.000 HX3.000.OOl ormoro 


2V<ICo<ks: J-IlJ.OOO«irfcj. K-$15.001-I30.000 1^-J50.0014100.000 M-S100.0OI-S23O.00O N-S230.001-«300,000 
(OeLCUIS) O-JJOO.OOl-Jl.000.000 P1<JA)0,OOI-«.000.000 W-«.000.00I-SU.000AI0 P><23.000.001-«0.000.000 P4-S30.000.001 oriDore 


3ValUbOi><lerQ-A|i|nB>l R-Cctf (real aUK oely) S-AneamcX t-C»AnSiAA 
(PeLC3) O-BoolcValDO V-OOcr W-Eiiimtfal 



529 



FINANCIAL DISCLOSURE REPORT 



Nuaa of Penoa Rqxiniag 
Siragusa, Charles J. 



DUeof Repoct 

07/16/1997 



Vra. ADDITIONAL INFORMATION OR EXPLANATIONS. 

I y I NONE (No ■fWiitiniMl bifacir«tioa or exptuutiooi.) 
N(»IE 



(Indicalo put of Rpoit.) 



530 



FINANCIAL DISC1X)SURE REPORT 



Name of Penoo Report in g 

Siragusa, Charles J. 



DuaofRepoit 
07/16/1997 



K. CERTIFICATION 

In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion No. 57 of the Advisory Committee on 
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory 
fimction in any litigation during the period covered by this rqwrt in which I, my spouse, or my minor or dependent children 
had a financial interest, as defined in Canon 3C(3Xc), in the outcome of such litigation. 

I certify that all the information given above (including information pertaining to my spouse and minor or dependent 
children, if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not rqwrted 
was withheld because it met applicable statutory provisions permitting non-disclosure. 

I fiirther certify that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U.S.C. app. 4, section 501 et. seq., 5 U.S.C. 7353 and Judicial 
Conference regulations. 



Signature 



CAa/igi,&j^ ^kMif^kj^Qj Date ///cj/y? 



Note: 



Any individual who knowingly and wilfully falsifies or fails to file this rqx)rt may be subject to civil 
and criminal sanctions (5 U.S.C. App. 4, Section 104). 



FILING INSTRUCTIONS 

Mail original and three additional copies to: 

Committee on Knandal Disdosnre 
Administrative OfTicc of the United States Coarts 
One Coltuabns Circle, N.E. 
Suite 2-301 
Washington, D.C 20S44 



531 



FINANCIAL STATEMENT 
NET WORTH 



Provide a complete, current financial net worth statement which itemizes in detail 
all assets Oncluding bank accounts, real estate, securities, trusts, investments, and other financial 
holdings) all llabilides including debts, moitgages, loans, and other financial obligatioDs) of 
yourself, your spouse, and other immediate members of your household. 



1 ASSETS 


UABILmES 


===] 




Cuh on bic^ uid in bulu 


21 


?23 


61 


Note* ptyible la btcia-uaaei 











VJS. CoyoBmcci Mcuritia-<di 
(dxilule 


217 


571 


25 


Nolei ptytUe to htvla-vnitcund 

















Holes piyible to teluivei 









Unliiied icasitie*-*ii ichulult 









Notei piyible to othen 









1 


AcoianU md nates ncciyible: 









Accountt lad billf due 









Due £nm itUdvu (j)d friends 








Unpiid income us 









Due from othen 








Other tinpid tix t&d intentt 









Doubtful 








Retl cttiie moRgif es piyible-idd 
Khedule SEE °B" 


155 


000 


00 


Ketl esuie o-wneii-uld tcbolale 


210 


DOC 


00 


Chirtfl ooitiite* sad other lieos fty- 
•ble 








Re4l tttH£ ffiart{i(U reccivtble 









Other debu-itcmizc: 








- 


Adioi ind oiiKt pcnooil prapeny 


40 


000 


00 










^if^ vtlue-4iic iosunnce 


2 


200 


00 










OtSs UMU-ilemize: 

















1 










, 






■ 
















- 










Total Enbilicief 


155 


000 


00 


■-. 








Net Worth 


336 


094 


86 


j Total AJScU 


491 


094 


86 


Totjl liihilitics tad net vot\h 


491 


094 


86 


- 


1 CONTINGEKr LIABIUTIES 








GENERAL INFORMATION 

















Are uy luett jdedgel? (Add <chad- 
ole.) 


NO 






I Ob leua or contncti 









Are yoa defend iiu in any loiu or lejil 
•ctioniT 


NO 






I Lc(>lCliimi 









Have you ever fiVrn baalit]]xcy? 


NO 


1 PiOTuioo tar Fedenl Income Tiz 


r 












.__ 


1 Other ipesitl d^x 


nl 






_' 




J== 



532 



SCHEDULE A 

I. Merrill Lynch 

A. Ready Asset Trust 7.215.00 

B. Mutual Funds 

1 . Putnam Utilities Growth and Income 

Fund Class A 71 .00 

2. Putnam Global Growth Fund Class A 10,363.00 

3. MFS Municipal Income FD Class B 13.426.00 

Total 31.075.00 

II. Merrill Lynch 

A Alliance Income Builder Class C 7,389.00 

B. ML Global Allocation B 8.825.00 

Total 16,214.00 

III. Common Stock 

Work Recovery New 1 ,084.00 

IV. Deferred Compensation - County of Monroe - PEBSCO 

A Putnam Investors Fund Class A 34,917.71 

B. Fidelity Equity - Income 33,485.78 

C. American Century. 20th Century WLTRA 28,912.59 

D. Templeton Foreign Fund, Class I 27.049.75 



V. 





Total 


124,365.83 


Defen-ed Compensation - State of New York - The 




Copeland Companies 






A Stable Income Fund 




16,310.29 


B. Janus Fund 




727.11 


C. TRP Equity Income Fund 




9.935.49 


D. TRP International Stock 




8,520.16 


E. Vanguard GNMA 




9.339.37 



Total 44,832.42 



533 



SCHEDULE B - REAL ESTATE 

Residence: Webster, New York 1 4580 

Fair Market Value: $21 0,000 

Mortgage Loan: $155,000 

Mortgage: Standard Federal Bank 

Savings/Finalcial Services 



45-964 98-18 



534 



III. GENERAL (PUBLIC) 

An ethical consideration under Canon 2 of the American Bar Association's Code of 
Professional Responsibility calls for "every lawyer, regardless of professional 
prominence or professional workload, to find some time to participate in serving the 
disadvantaged." Desaibe what you have done to fulfill these responsibilities, listing 
specific instances and the amount of time devoted to each. 

From 1984 through 1992, while a member of the Monroe County District 
Attorney's Office, i served on the Rape Crisis Advisory Board, and also 
provided legal instruction for volunteer counselors with that organization. 
From 1988 through the present, I have participated in the Mentor Program 
sponsored by the Board of Cooperative Educational Services by providing 
guidance for students interested in careers in law and criminal justice. 
Beginning in 1991, I became involved in the Community Reading Program 
sponsored by the Rochester City School District. In conjunction with this 
program, I had the opportunity to read to inner-City school children at the 
primary level to encourage their interest in learning through reading. Since 
1992, ! have participated in police civilian academies, sponsored by various 
law enforcement agencies within Monroe County. The purpose of these 
academies is to foster better relationships between the police and the 
communities they serve. In 1992, 1 began assisting Families and Friends of 
Murdered Children and Victims of Violence, an organization started by a 
mother whose son had been murdered in the City of Rochester. On behalf of 
this group, I have spoken to teenagers on the impact of violence, based on my 
experience as an assistant district attorney and as a judge. Presently, I serve 
on the Advisory Board for this organization. Since 1993, 1 have been active 
in the Weapons Diversion Program of the Rochester City School District. In 
connection with this program, I have spoken to inner-City students, 
suspended from school because of weapons possession, and their parents, 
about the potential consequences of such conduct, as well as the mutual 
responsibility to foster a safe environment for learning in our schools. Since 
1994, 1 have been involved in the Park Ridge Chemical Dependency Outreach 
Program. I have met with high school students in the program, as well as 
their parents, and discussed the legal ramifications and reasons behind drug 
and alcohol abuse. Finally, I am currently a member of the Monroe County 
Criminal Justice Council, a group comprised of professionals from various 
discipline, which monitors criminal justice issues. 



535 



The American Bar Association's Commentary to its Code of Judicial Conduct states 
that it is inappropriate for a judge to hold membership in any organization that 
invidiously discriminates on the basis of race, sex, or religion. Do you currently 
belong, or have you belonged, to any organization which discriminates - through 
either formal membership requirements or the practical implementation of 
memtjership requirements or the practical implementation of membership policies? 
If so, list, with dates of membership. What you have done to try to change these 
policies? 

I do not, nor have I ever belonged to any such organization. 



Is there a selection commission in your jurisdiction to recommend candidates for 
nomination to the federal courts? If so, did it recommend your nomination? Please 
describe your experience in the entire judicial selection process, from beginning to 
and (including the circumstances which led to your nomination and interviews in 
which you participated). 

Yes, there is. The process started with the Committee on the Judiciary for 
Senator Daniel Patrick Moynihan. The Committee required the submission of 
a detailed "Candidate's Questionnaire" followed by an interview. At my 
interview, which occurred in New York City, the Committee members 
thoroughly questioned me about my qualifications, experience and 
background. After completing interviews with all candidates, the Committee 
recommended certain individuals to Senator Moynihan. I was one of the 
individuals recommended, and was subsequently interviewed by Senator 
Moynihan himself in Washington. Approximately two weeks later. Senator 
Moynihan informed me that he would be recommending me to President 
Clinton for appointment as a Federal District Court Judge. Shortly thereafter, 
I received various forms from the Office of Counsel to the President, including 
the American Bar Association Questionnaire and the F.B.I. Standard Form 86. 
After completion of these forms, I was interviewed extensively in Washington, 
D.C. by members of the Department of Justice, and next, in Rochester, New 
Yorit, first by a representative of the F.B.I., and then by a representative of the 
American Bar Association. With respect to the A.B.A. investigation, I was 
informed that I was rated well qualified for the appointment. Finally, on July 
15, 1997, I was notified by the White House Counsel's Office that President 
Clinton was nominating me for the position of United States District Judge for 
the Western District of New York. 



536 



Has anyone involved in the process of selecting you a judicial nominee discussed 
with you any specific case, legal issue or question in a manner that could 
reasonably be interpreted as asking how you would rule on such case, issue, or 
question? If so, please explain fully. 

No. 

Please discuss your views on the following criticism involving "judicial activism." 

The role of the Federal judiciary within the Federal government, and within 
society generally, has become the subject of increasing controversy in recent 
years. It has become the target of both popular and academic criticism that 
alleges that the judicial branch has usurped many of the prerogatives of other 
branches and levels of government. 

Some of the characteristics of this "judicial activism" have been said to include: 

a. A tendency by the judiciary toward problem-solution rather than 
grievance-resolution; 

b. A tendency by the judiciary to employ the individual plaintiff 
a vehicle for the imposition of far-reaching orders extending 
to broad classes of individuals; 

c. A tendency by the judiciary to impose broad, affirmative duties 
upon governments and society; 

d. A tendency by the judiciary toward loosening jurisdictional 
requirements such as standing and ripeness; and 

e. A tendency by the judiciary to impose itself upon other 
institutions in the manner of an administrator with continuing 
oversight responsibilities. 

I believe in our tripartite system of government. The strong 
presumption of constitutionality of legislative acts compels trial courts, 
in the absence of a clear showing of conflict with the Constitution, to 
determine and give full force and effect to legislative intent. Adherence 
to this rule is necessary to ensure that our representative government 
works and works well. Trial courts need to appreciate their 
jurisdictional limitations. While the constitutionality of legislative 
enactments may properiy be the subject of litigation, a review of the 
"wisdom" of such legislation, state or federal, is not. 



537 



Cases in trial courts, in my experience, involve the assertion of the 
individual interests of the parties themselves. These litigants are not 
the representatives of society at large. While sometimes their interests 
are broad and affect a number of people, as in class actions, more 
typically these interests are very narrow and specific, as in negligence 
and contract actions. Therefore, an individual case, at the trial court 
level, should not occasion the creation of new rights or the 
implementation of far-reaching social policy. 

My sixteen years as a trial attorney and my four-and- a-half years as a 
trial judge have left me with a strong sense that what litigants expect, 
and what they are entitled to from the courts, is an impartial application 
of existing law and precedent, as well as the established rules for 
determining legislative intent. I do not see the role of federal district 
courts differently. 



538 



I BIOGRAPHICAL INFORMATION (PUBLIC) 

Full Name (include any former names used). 

Algenon Lamont Marbley 
Nickname; Monte Marbley 

Address: List current place of residence, office address(es), and telephone numbers. 

Residence: Blacklick, Ohio 43004 

OflBce: Vorys, Sater, Seymour and Pease 

52 East Gay Street 
P. O. Box 1008 
Columbus, Ohio 43216-1008 

Date and Place of Birth. 

Date of Birth: September 19, 1954 

Place of Birth: Morehead City, North Carolina 

Marital Status (include maiden name of wife, or husband's name): List spouse's 
occupation, employer's name and business address(es). 

Married: Yes 

Spouse: Janet Lynn Green Marbley 

Occupation: Administrator and Counsel, Supreme Court of Ohio Client's Security Fund 
175 South Third Street, Columbus, Ohio 

Education: List each college and law school you have attended, including dates of 
attendance, degrees received, and dates degrees were granted. 

University of North Carolina Northwestern University School of Law 

at Chapel Hill Matriculated August, 1976 

Matriculated August, 1972 Graduated May, 1979 

Graduated May, 1976 Juris Doctor Degree, 1979 
Bachelor of Arts Degree, 1976 



539 



Employment Record: List (by year starting with the most recent) all business or 
professional corporations, companies, firms, or other enterprises, partnerships, institutions 
and organizations, nonprofit or otherwise, including firms, with which you were connected 
as an officer, director, partner, proprietor, or employee since graduation fi'om college 



Associate (1986-1991) 
Partner (1991 -Present) 



Vorys, Sater, Seymour and Pease 
52 East Gay Street 
Columbus, Ohio 43215 



Board Member (1991 - Present) 
Board President (1995 - 1997) 



Salesian Boys and Girls Club 
80 South Sixth Street 
Columbus, Ohio 43215-4784 



Board Member (1991 - Present) 
Secretary and Counsel to the Board 
(1992- 1996) 



Big Brothers/Big Sisters Association 
of Columbus 



Adjunct Professor of 
Trial Advocacy 
Fall 1995 



Capital University Law School 
665 South High Street 
Columbus, Ohio 



Instructor, 1987 -Present 



National Institute of Trial 
Advocacy 



Assistant Regional Attorney 
(1981-1986) 



United States Department of Health and 

Human Services 
Office of the Regional Attorney 
105 W. Adams Street 
Chicago, Illinois 



Adjunct Professor of Criminal 
Law and Procedure (1985 - 1986) 



Northeastern Dlinois University 
5500 N. St. Louis Avenue 
Chicago, Illinois 



Associate (1979 - 1981) 
Law Clerk (1977 -1979) 



James D. Montgomery and Associates 
(formerly Montgomery and Holland) 
39 South LaSalle Street 
Chicago, Illinois 



Legal Assistance Clinic 
Law Clerk (Summer 1977) 



Northwestern University 
357 E. Chicago Avenue 
Chicago, Illinois 6061 1 



Laborer (Summer 1976) 



Bethlehem Steel Corporation 

U. S. Highway 12, Portage, Indiana 



540 



7. Military Service; Have you had any military service? If so, give particulars, including the 
dates, branch of service, rank or rate, serial number, medals awarded, and type of 
discharge received. 

None. 

8. Honors and Awards: List (by month and year starting with the most recent) any 
scholarships, fellowships, honorary degrees, and honorary society memberships that you 
believe would be of interest to the Conference. 

Ten Outstanding Young Citizens of Columbus (1995), 

Outstanding Service Award, Minority Legal Education Resources, Inc (1986) (Nonprofit 

organization which assisted minorities and others in taking the Illinois Bar 

Examination); 
Order of the Golden Fleece (1975), Highest Co-educational Honorary Society at the 

University of North Carolina, Chapel Hill, 
Order of the Grail (1974), Highest Male Honorary Society at the University of North 

Carolina, Chapel Hill; 
North Carolina Fellow (1973), Based on Academic Performance and Leadership Ability, 

awarded to approximately 20 students each year. 

9. Bar Associations: List all bar associations, legal or judicial-related committees or 
conferences of which you are or have been a member and give the titles and dates of any 
offices which you have held in such groups. 

Bar Associations: 

American Bar Association 
National Bar Association 
Columbus Bar Association 
Ohio State Bar Association 

Committees: 

Columbus Bar Association: 

Chairman, Trial Advocacy Committee - (1996 - 1997) 

10. Other Memberships: List all organizations to which you belong that are active in lobbying 
before public bodies. Please list all other organizations to which you belong. 

a. Lobbying Organizations: 

National Institute for Trial Advocacy (I have not been involved in lobbying 
activities) 



541 



b Other Organizations: 

President of the Board of Directors, The Salesian Boys and Girls Club; (Term 

Expires 7/97) 
Secretaiy and Counsel to the Board, Big Brothers/Big Sisters Association of 

Franklin County, (Term Expires 7/97) 
Omega Psi Phi Fraternity, Inc. 
Jefferson Golf and Country Club 
The Capital Club 

1 1 . Court Admission: List all courts in which you have been admitted to practice, with dates 
of admission and lapses if any such memberships lapsed Please explain the reason for any 
lapse of membership. Give the same information for administrative bodies which require 
special admission to practice. 

Court Date of Admission 

Supreme Court of Illinois 1980 

United States District Court for the Northern District of Illinois 1980 

United States Court of Appeals for the Seventh Circuit 1982 

Supreme Court of Ohio 1987 

United States District Court for the Southern District of Ohio 1987 

United States Court of Appeals for the Sixth Circuit 1996 

United States District Court for the Southern District of Illinois 1 996 

12. Published Writings: List the titles, publishers, and dates of books, articles, reports, or 
other published material you have written or edited. Please supply one copy of all 
published material not readily available to the Committee. Also, please supply a copy of 
all speeches by you on issues involving constitutional law or legal policy. If there were 
press reports about the speech, and they are readily available to you, please supply them. 

None 

13 Health: What is the present state of your health? List the date of your last physical 
examination. 

Present state of health: Excellent 

Date of last physical examination : 1 997 

14 Judicial Office: State (chronologically, most recent first) any judicial offices you have 
held, whether such position was elected or appointed, and a description of the jurisdiction 
of each such court. 

None 



542 



15. Citations: If you are or have been a judge, provide: (1) citations for the ten most 
significant opinions you have written, (2) a short summary of and citations for all appellate 
opinions where your decision were reversed or where your judgment was affirmed with 
significant criticism of your substantive or procedural rulings: and (3) citations for 
significant opinions on federal or state constitutional issues, together with the citation to 
appellate court rulings on such opinions. If any of the opinions listed were not officially 
reported, please provide copies of the opinions. 

None 

1 6. Public Office: State (chronologically, most recent first) any public offices you have held, 
other than judicial offices, including the terms of service and whether such positions were 
elected or appointed. State (chronologically, most recent first) any unsuccessful 
candidacies for elective public office. 

None. 

17. Legal Career: 

a. Describe chronologically your law practice and experience after graduation fi^om 

law school including: 

(1) whether you served as clerk to a judge, and if so, the name of the judge, 
the court, and the dates of the period you were a clerk; 

No. 

(2) whether you practiced alone, and if so, the addresses and dates; 
No. 

(3) the dates, names and addresses of law firms or offices, companies or 
governmental agencies with which you have been connected, and the 
nature of your connection with each; 

Title Employer Date 

Law Clerk, Certified 71 1 Northwestern University Legal September 1976- 

Student (As a third year law Assistance Clinic May 1979 

student, I was allowed to 375 E. Chicago Avenue 

represent clients in court Chicago, Illinois 
under supervision of an 
attorney, 1975-1976) 



543 



Associate Attorney 



Montgomery and Holland 

39 South LaSalle Street 

Chicago, Illinois 

(n/k/a James D Montgomery and 

Associates) 



May 1979 - 
October 1981 



Assistant Regional Attorney 



Adjunct Professor of 
Criminal Law and Procedure 

Associate (1986- 1991) 
Partner (1991 -Present) 



Instructor 



Adjunct Professor Trial 
Advocacy 



United States Department of 
Health and Human Services 
105 W. Adams Street 
Chicago, Illinois 60603 

Northeastern Illinois University 
Chicago, Illinois 

Vorys, Sater, Seymour and Pease 
52 East Gay Street 
Columbus, Ohio 43215 

National Institute of Trial 
Advocacy 

Capital University Law School 
665 South High Street 
Columbus, Ohio 



October 1981 - 
November 1986 



1985 - 1986 



1986 -Present 



1987 - Present 



Winter 1995 
Present 



(1) What has been the general character of your law practice, dividing it into 
periods with dates if its character has changed over the years? 

May 1979 - October 1981 (Montgomery and Holland) 

I was employed by Montgomery and Holland at the beginning of my 
second year in law school (fall 1977). I worked there continuously through 
law school, until October 1981. 

Montgomery and Holland was a litigation boutique with approximately 
seven attorneys. I worked primarily with the senior partner, James D. 
Montgomery, doing federal and state criminal defense. My primary 
responsibility was assisting Mr. Montgomery in the preparation and trial of 
cases. Typically, I prepared witnesses for testimony, took witness 
statements and engaged in general investigation. I was responsible for 
drafting pleadings, writing briefs and arguing motions. 



544 



While at Montgomery and Holland, I tried six cases to a jury. I served as 
lead counsel on four of those trials, and as second chair on the remaining 
two. I was involved in one civil jury trial, a paternity case, which I also 
second chaired with Mr. Montgomery. The remaining four jury trials 
involved three felony criminal matters and one misdemeanor matter, ail of 
which I first chaired 

October 1980 - November 1986 

In October 1980, 1 left the Montgomery and Holland firm and began 
employment with the Office of the Regional Attorney, U. S. Department of 
Health and Human Services ("HHS") in Chicago. I was recruited to the 
Department of Heahh and Human Services primarily to practice in the 
administrative litigation area. My primary responsibilities were prosecuting 
physician exclusion and physician suspension cases pursuant to Section 
11 60 of the Social Security Act. 

At issue in physician suspension cases was the length of time that a 
physician should be suspended fi"om the Medicare Program due to a 
conviction relating to Medicaid fi"aud. The physician exclusion cases were 
akin to medical malpractice cases. At issue in those cases was whether the 
physician's practice fell below the standard of care for physicians in that 
particular geographical area. If it was determined by the administrative law 
judge that the practitioner fell below the standard of care, then that 
practitioner would be excluded fi-om the Medicare program for a period of 
time. While at Health and Human Services, I tried two physician exclusion 
cases and won both. I tried In The Matter of_Dr. H. R., , which was one 
of the first such proceeding to go to hearing in the country. I also tried as 
first chair In The Matter ofM. F. Again, the Agency prevailed throughout 
the administrative process. My remaining duties included representing the 
various HHS umbrella agencies~e.g. the Social Security Administration 
and the Health Care Financing Administration in various administrative 
matters. During that time, I represented the Agency before the Seventh 
Circuit Court of Appeals in the case ofSt. EUzabeth Hospital v. Bowen, 
797 F.2d 449 (7th Cir. 1986), a case relating to hospital reimbursement 
regulations, in which the Agency prevailed. 



'J Pursuant to the pertinent regulations, the name of the respondent cannot be disclosed. 

7 



545 



November 1 986 - December 1 995 

I joined Vorys, Sater, Seymour and Pease as an Associate in November 
1986. 1 was recruited directly into the litigation group to handle medically- 
related matters, such as medical malpractice defense, product liability 
litigation and workers compensation litigation My first major case, 
however, was in the United States District Court for the Southern District 
of Ohio in the case ofRopak v. Buckhom, 656 F Supp 209 (S.D Ohio 
1987), a securities litigation matter in which the primary issue was the 
validity of a "poison pill" plan. This was a case of first impression in this 
district and I was a part of the litigation team. Ropak was the first 
litigation in which a poison pill plan under Delaware law was found invalid. 
I also participated in the preparation of the brief filed with the Sixth Circuit 
Court of Appeals The Sixth Circuit affirmed the favorable ruling below. 
Having participated in that case, I also was involved in the trial of General 
Acquisitions, Inc. etal. v. Gencorp, Inc., et al.. Case No C2-87-348 U.S. 
District Court Southern District of Ohio before the Honorable Joseph 
Kinneary. There, as in the Ropak litigation, I was primarily involved in 
drafting pleadings, and interviewing and preparing witnesses for trial. The 
GenCorp matter eventually settled. 

Subsequent to my involvement in securities litigation, my litigation practice 
involved primarily product liability defense, general business litigation and 
workers compensation litigation. I have represented a variety of clients in 
my product liability defense practice, including General Motors, Coca- 
Cola, Illinois Tool Works and Ford Motor Company. One significant case, 
an automobile fire case. Bales v. General Motors, Case No. 86 CI 397, 
I tried to a jury before the Honorable Nicholas Holmes, in the Ross 
County, Ohio Court of Common Pleas I also tried two additional product 
liability matters, as well as three workers' compensation matters during this 
period. 

My commercial litigation experience, in addition to securities litigation, 
involved matters ranging fi^om breach of contract to commercial paper. I 
was involved in a protracted breach of contract case with product liability 
overtones, Buckeye Custom Products, Inc. v. 77?^^ Technar, Case No. C2- 
90-207, before the Honorable James Graham. That case settled on the day 
of trial following arguments on motions, but before jury selection. I also 
was involved in a complex set of commercial paper cases on behalf of 
Signet Bank Maryland which were pending in the District Court with 
parallel cases pending in the Franklin County, Ohio Court of Common 
Pleas Those cases settled. 



546 



1995 to Present 

In 1 995 my practice changed to some degree. I now practice primarily in 
the area of employment litigation and commercial litigation. In 1995, 1 
undertook all of the Ohio litigation for Illinois Tool Works, a Fortune 100 
company Illinois Tool Works selected me as the attorney for its sixteen 
factories in the State of Ohio. I am responsible for all of the company's 
labor work and all of the litigation involving those factories, including all of 
its divisions. I also am doing a significant amount of employment litigation 
for The Limited and its various divisions. I serve as lead counsel in several 
employment litigation matters pending in the United States District Court 
for the Southern District of Ohio, and I have appeared as trial counsel for 
such other companies as Symix Systems, Inc., Pitney Bowes and M/I 
Schottenstein Homes 

(2) Describe your typical (former) clients, and mention the areas, if any, in 
which you have specialized 

Most of my clients are large corporations, although I have represented 
several smaller enterprises and individuals My civil litigation experience 
has been in the areas of general business litigation, product liability and 
employment litigation. My representative clients in litigation include: 

Business Litigation 

Wendy's International, Inc. 
Worthington Industries 
Illinois Tool Works 
National City Bank 
Signet Bank Maryland 

Product Liability 

General Motors 
Ford Motor Company 
The Coca-Cola Company 
Illinois Tool Works 

Employment Litigation 

The Limited 
Symix Systems, Inc. 
Illinois Tool Works 
M/I Schottenstein Homes 



547 



Workers' Compensation Litigation 

General Motors 

Teledyne 

Illinois Tool Works 

George Lynch Controls 

Special Counsel Litigation 

The Ohio State University 
Franklin County Children's Services 
Big Brothers/Big Sisters Association 
Project Linden, Inc. 

I have also represented The Ohio State University as special counsel in a 
wrongful death action from which the University was dismissed pursuant to 
a Motion to Dismiss in State Court and later dismissed in the Court of 
Claims I also have appeared as special counsel for Franklin County 
Children Services in a contested child custody matter in which the Agency 
had been implicated on negligence counts. 

(1) Did you appear in court frequently, occasionally, or not at all? If the 
frequency of your appearances in court varied, describe each such variance, 
giving dates 

I appear in court frequently. Virtually 100% of my professional work is 
litigation. The only exception would be some of the pro bono counseling 
that I provide and have provided to Big Brothers/Big Sisters Association as 
well as The Salesian Boys and Girls Club for the past six years. 

(2) What percentage of these appearances was in: 

(a) federal courts: 

Approximately 33% of my cases have been in the Federal courts. 

(b) state courts of record: 

Approximately 66% of my cases have been in the State courts. 

(c) other courts: 

Less than 1% of my cases have been in other courts. 



10 



548 

(3) What percentage of your litigation was: 

(a) civil: 
85% 

(b) criminal: 
15% 

(4) State the number of cases in courts of record you tried to verdict or 
judgment (rather than settled), indicating whether you were sole counsel, 
chief counsel, or associate counsel 

Twenty (20) 

• Sole Counsel: 9 

• Chief Counsel: 15 

• Associate Counsel: 5 

(5) What percentage of these trials was: 

(a) jury - 85% 

(b) non-jury- 15% 



18. Litigation: Describe the ten most significant litigated matters which you personally 

handled Give the citations, if the cases were reported, and the docket number and date if 
unreported. Give a capsule summary of the substance of each case. Identify the party or 
parties whom you represented, describe in detail the nature of your participation in the 
litigation and the final disposition of the case Also state as to each case: 

a. the date of representation; 

b. the name of the court and the name of the judge or judges before whom the case 
was litigated; and 

c the individual name, address, and telephone numbers of co-counsel and of principal 

counsel for each of the other parties. 



11 



549 

The ten most significant litigated matters are as follows 

1) United Stales v. Powell, 654 F 2d 724 (7th Cir 1981) 

a Date of Representation 1980 

b Court United States District Court for Northern District of Illinois 

Honorable Nicholas J Bua 

c Co-Defense Counsel: James D Montgomery 

39 S LaSalle Street 
Chicago, Illinois 
(312)977-0200 

d. Opposing Counsel; Assistant United States Attorney Daniel Reidy 

(Mr. Reidy is now a partner at Jones, Day, Reavis and Pogue, Chicago, 
(312)269-4140) 

Defendant James H Powell was charged with violation of the Hobbs Act, 18 
use. § 1951 The government argued that Mr Powell, a plumbing inspector for 
the City of Chicago, had extorted money from an electrical contractor. 

The matter was tried to a jury in the United States District Court for the Northern 
District of Illinois before Judge Nicholas Bua. The government was represented 
by Assistant United States Attorney, Dan Reidy, now a partner with the law firm 
of Jones, Day, Reavis & Pogue in Chicago The jury trial lasted approximately one 
week and was tried pursuant to a multi-count indictment The principal issue 
before the jury was whether defendant, Mr. Powell, extorted money fi-om the 
electrical contractor who had received goods moved in interstate commerce. In 
prosecuting its case, the government relied on wire tap evidence derived fi-om a 
wire worn by their primary witness, the electrical contractor. At trial, we proved 
that the tape testimony was unreliable and the defendant was convicted of only two 
counts of the multi-count indictment The defendant was sentenced to one year in 
the federal penitentiary 

The Powell case was significant to me because it was my first jury trial in Federal 
court I was responsible for putting on the entire defense case, which included the 
direct examination of the defendant and various defense factual witnesses and 
character witnesses In addition, I cross examined some of the prosecution 
witnesses and argued all motions before the Court. The fact that I was able to 
convince the jury through my examination of the defendant that the wire tap 
evidence was unreliable and was to be disbelieved certainly resulted in the 
defendant not being convicted of the more serious charges. 



12 



550 



2) Buckeye Custom Products. Inc. v. TRW Technar, Case No C2-90-207 

a Date of Representation; 1990-1991 

b Court: United States District Court for Southern District of Ohio 

Honorable James Graham 

c Co-Counsei: Michael G. Long 

Vorys, Sater, Seymour and Pease 
52 East Gay Street 
Columbus, Ohio 43215 
(614)464-6297 

d. Opposing Counsel: Richard I. Werder, Jr. 
Michael Carpenter^ 
Jones, Day, Reavis & Pogue 
North Point 
901 Lakeside Avenue 
Cleveland, Ohio 44114 
(216)586-7260 

This breach of contract action was brought by my client. Buckeye Custom 
Products, Inc , against TRW Technar in the United States District Court for the 
Southern District of Ohio before the Honorable James Graham Buckeye Custom 
Products, a division of Worthington Industries, sued TRW for its failure to honor a 
requirements contract between the companies for the production of cylinders that 
were incorporated in TRW's airbags. TRW counterclaimed against Worthington 
Industries, Inc., arguing that the part Buckeye produced was defective. 

The case involved complex commercial issues, as well as technical issues. TRW's 
claim was in the nature of a product liability claim because it involved questions of 
whether the cylinder produced by Buckeye was in full compliance with the 
specifications of the contract. The primary technical area of contention was 
whether the cylinders were "burr fi^ee," or produced without any extruded metal 
fi-agments. This required extensive expert testimony on "burr technology." The 
case lasted approximately two years, with discovery lasting approximately one 
year. 



^J Mr. Carpenter is now a member of the firm of Zeiger and Carpenter, Suite 1600, 4 1 South High Street, 
Columbus, Ohio 43215, (614) 365-4100. 



13 



551 



I was primarily responsible for conducting much of the discovery, including talcing 
the depositions of TRW s factual and expert witnesses and defending the 
depositions of Buckeye's factual and expert witnesses. I also was responsible for 
the trial brief and arguing motions The case settled after argument on the motions, 
but prior to voir dire 



3) Thomas Bales v. General Motors Corporation, Case No. 86 CI 397 

a. Date of Representation 1987 

b. Court: Ross County Court of Common Pleas 
Honorable Nicholas Holmes 

c Co-Counsel: Gerald P Ferguson 

Vorys, Sater, Seymour and Pease 
52 East Gay Street 
Columbus, Ohio 43215 
(614) 464-6484 

d Opposing Counsel: Charley Hess 

1520 Old Henderson Road 
Suite 102 A 
Columbus, OH 43220 
(614)442-5800 

This case was a product liability action. I defended on behalf of General Motors 
Corporation. The plaintiff alleged that a defect in the ignition system of the 
Camero caused the Camero to ignite after the ignition had been turned off and the 
car parked in the garage. The fire which ensued consumed the garage and its 
contents and much of the plaintiffs house. The defense argued that the fire was 
not caused by any defect in the Camero, but offered as a possibility defective 
wiring in the garage. 

The defense strategy which I developed was significant in two respects. First, the 
defense not only had to rebut Plaintiffs theory, but had to present a plausible 
theory of the fire's origins. In effect, the defense had to sustain a burden of 
persuasion to establish that wiring in the garage was the likely cause of the fire. 
Secondly, because the fire destroyed much of the family's belongings, I had to 
convince the jury to be guided by scientific fact instead of emotions. It was, 
therefore, incumbent upon the defense to focus the jury's attention on the issue of 
liability instead of damages and on the expert testimony instead of that of the 
Plaintiffs. 



14 



552 



The case was tried to a jury. I was responsible for every aspect of this trial, 
including jury selection, opening argument, presentation of the defense case, cross 
examination of witnesses in the plaintiffs case, closing arguments and arguments 
on motions My co-counsel only participated in the charging conference The jury 
returned a verdict in favor of the defense on all claims 



4) In re M. F., Case No. 000-57-7005 

a. Date of Representation: February 27 - March 1, 1985; August 12 - 14, 
1985 

b. Department of Health and Human Services, Social Security Administration 
Office of Hearings and Appeals 

Chief Administrative Law Judge, Kenneth Stewart 

c. Co-Counsel: Donna Morris Weinstein 

Regional Attorney 

U. S. Dept of Health and Human Services 

105 W. Adams Street 

Chicago, Illinois 60603 

(312)886-1710 

d. Opposing Counsel: Steven O. Murray 

Otjen, Van Ert, Stangle, Lieb & Wier 
450 Science Drive, Suite 110 
Madison, Wisconsin 53711 
(608) 238-9500 

This case was a physician exclusion case brought by my client, the United States 
Department of Health and Human Services ("Department" or "DHHS") pursuant 
to Section 11 60 of the Social Security Act. The Department alleged that the 
respondent. Dr. F. rendered care that fell below the professionally recognized 
standards of care for the geographical area in which he practiced and that he 
should, therefore, be excluded from participation in the Medicare Program for a 
period of five (5) years. The Department had the burden of establishing its case 
through medical expert testimony. 

The case of Dr F. involved seven medical charts and several days of expert 
medical testimony. At the conclusion of the testimony, the administrative law 
judge found for the Department and excluded Dr. F for five years. The 
significance of this case was that it was one of the first cases tried nationally under 
the then newly-enacted Section 11 60 of the Act and was the second one tried and 
won in our region. I had, in fact, tried the first case of this kind in the six-state 
region served by the Chicago office of HHS The Dr F matter also was 



15 



553 



significant because I trained our Regional Attorney, Donna Weinstein, in trying 
physician exclusion cases. 



Parks V. Tdedyne Ohio Cast, Case No 91-CV-0221 

a Date of Representation April, 1993 

b Court: Clark County Court of Common Pleas 

Honorable Gerald F Lorig 

c. Co-Counsel: None. 

d Opposing Counsel: John Workman 

1375 Dublin Road 
Columbus, Ohio 43215-1069 
(614)486-8935 

This was a workers' compensation death case brought against my client, Teledyne. 
The claimant's decedent had prevailed throughout the administrative process and 
Teledyne appealed the matter to Common Pleas Court for a trial de novo. At issue 
in this case was whether the Plaintiffs decedent's lung disease was contracted as a 
result of his work in the Teledyne foundry. This two-day jury trial centered 
primarily on the medical testimony of several experts. I was responsible for the 
entire case: argument on motions, opening statement, examination of all witnesses 
and closing argument. 

Af^er several hours of deliberation, the jury returned a verdict in favor of Teledyne. 
This case was significant because it was one of those rare trials in which the 
claimant had prevailed throughout the administrative process on essentially the 
same medical evidence as was presented to the jury. It was a very difficult case, 
both technically and emotionally, inasmuch as the Plaintiff was a very sympathetic 
figure, and it was tried in a city which had some antipathy toward Teledyne 
because it had closed its foundry, relocated and taken a significant number of jobs 
from the Springfield community. 



16 



554 



6) Pruitt V. General Motors, 74 O App 3d 520 (1991), Juris Mtn overruled, 62 O. 
St. 3d 1447(1991) 

a. Date of Representation: 1991 

b. Court; Franklin County Court of Common Pleas 
Honorable David Johnson 

c. Co-Counsel: Gerald P. Ferguson 

Vorys, Sater, Seymour and Pease 

52 East Gay Street 

P O Box 1008 

Columbus, Ohio 43216-1008 

(614)464-6484 

d. Opposing Counsel: Lyman Brownfield 

Lyman Brownfield Law Offices 

341 S. Third Street 

Suite 10 

Columbus, OH 43215 

(614) 221-5834 

This is a product liability case in which I represented General Motors ("GM"). At 
issue in this case was whether a cable located on a semitractor, which broke, 
causing the Plaintiff" significant bodily harm, was defective. The defense contended 
that the accident resulted fi^om product misuse or abuse, and was not related to any 
design defect or production defect. The case was tried to a jury over a three-day 
period. At the end of the Plaintiff's case, the Court granted GM's Motion for a 
directed verdict based on GM's ability to refiite Plaintiffs' expert testimony. The 
responsibilities for this case were divided evenly with co-counsel. I was 
responsible for voir dire and cross examination of several of Plaintiff's witnesses, 
including Plaintiff's expert. We also prevailed in the Tenth District Court of 
Appeals of Ohio. I shared responsibility for preparation of the appellate brief 



17 



555 



7) Null V. Franklin County Children Services, Case No. 92 JU-0 1 -84 

a Date of Representation March, 1992 

b Court: Franklin County Court of Common Pleas 

The Honorable Ronald Solove 

c. Co-Counsel: None. 

d. Opposing Counsel Charles K. Milless 

175 South Third Street 
Columbus, Ohio 43215 
(614)228-6885 

Nancy K. Wonnell 
Wonnel! & Wonnell 
330 S. High Street 
Columbus, Ohio 43215-4510 
(614)224-7291 

Natalie Fletcher 
122 E. Main Street 
3rd Floor 

Columbus, Ohio 43215 
(614)267-3700 

This was a child custody case in which there were two primary issues: 
(1) whether the two minor children involved should be in the custody of Franklin 
County Children Services ("FCCS"); and (2) whether FCCS had been negligent in 
allowing the children to return to their home after they had been in the temporary 
custody of FCCS. The case was tried over the course of several days before Judge 
Ronald Solove and was highly publicized by The Columbus Dispatch. I was 
retained as special counsel to represent FCCS in the proceeding before Judge 
Solove. 

This was an important case for several reasons. First, the safety and well-being of the 
children was of paramount importance. It was in the best interest of the children to be 
permanently removed from a neglectful home environment. I also had to defend the 
Agency on charges made by the guardian ad litem, Charles K. Milless, Esq., that the 
Agency had been negligent in returning the children to the home after the Agency had 
taken them into temporary custody. I had to persuade the Court that the Agency 
exercised due caution and sound discretion in returning the children to the home. I 
had to demonstrate to the Court that, where possible, it was the policy of the Agency 
to reunite and to maintain the family unit. I was successfiil in persuading the Court 
that FCCS acted reasonably under the circumstances 



18 



556 



The Court agreed with our position and removed the children from the home The 
Court declined to find that FCCS had been guilty of actionable negligence in 
returning the children to the home. 



8) Chase Enterprises v. Wendy 's International, Case No. 395 CV 00486 

a. Date of Representation: 1996 

b. Court: United States District Court For The District of Connecticut 
Honorable Peter C Dorsey 

c. Co-Counsel: Michael G. Long 

Vorys, Sater, Seymour and Pease 

52 East Gay Street 

P. O. Box 1008 

Columbus, Ohio 43216-1008 

(614)464-6297 

d. Opposing Counsel: Kathleen McManus TraflFord 

Porter, Wright, Morris & Arthur 
41 South High Street 
Columbus, Ohio 43215-3406 
(614)227-1915 

This was a breach of contract case brought by Chase Enterprises against Wendy's 
International, Inc. ("Wendy's) for alleged violations of Wendy's franchise 
agreement. Plaintiff, a franchisee whose store was located in Krakow, Poland, 
argued that Wendy's failed to provide adequate support services to assist the 
fledgling franchise. On behalf of Wendy's, I took the position that Wendy's 
International Group offered all of the technical support that it was obligated to 
provide pursuant to the franchise agreement 

This case was of precedential value to Wendy's If it were found that Wendy's 
failed to support its international franchisee, then other franchisees stood poised to 
register similar complaints. The Wendy's support system and network, in effect, 
were on trial. It was essential that the system be exonerated, and that, irrespective 
of the resolution of the case, the structure of Wendy's franchise agreement remain 
intact. 

In order to defend Wendy's interests effectively, I had to immerse myself in 
Wendy's operational procedures, as well as develop an understanding of franchise 
law. I was responsible for conducting virtually all of the discovery in the matter, 
developing our litigation strategy and coordinating the efforts of the various 



19 



557 



Wendy's divisions I also was responsible for negotiating with opposing counsel 
to settle the dispute This matter eventually was referred to arbitration but, prior 
to arbitration, was settled by the parties 

9) Howard v. The Limiled Inc., Case No BC086556 

a Date of Representation; 1994-1995 

b Court: Superior Court of the Los Angeles Judicial District for the County 

of Los Angeles 
Honorable Edward M. Ross 

c. Co-Counsel: Jay S. Hill (Local Counsel) 

Wiedner and Swanson 
10 Universal City Plaza 
Universal City, California 
(818)754-3300 

d Opposing Counsel: Timothy E Meyer 

2029 Century Park East 

Suite 1020 

Los Angeles, California 90067-2901 

(310)203-0754 

In this case, the Plaintiff, Garry Howard, brought an action against The Limited 
alleging that The Limited violated the California Pubhc Accommodations Act and 
other state civil rights statutes. Howard alleged that he was wrongfully detained at 
the behest of The Limited and that The Limited thus violated the civil rights of 
Howard and his female companion In addition to filing suit, the Plaintiff engaged 
in a campaign against The Limited consisting of picketing and leafleting On behalf 
of The Limited, I argued that PlaintifTs civil rights had not been violated, that The 
Limited was acting well in its power in surveilling Plaintiff while he was in the 
store, and demonstrated conclusively that The Limited did not order that the 
Plaintiff be searched or detained. The trial court agreed with our position and 
granted summary judgment in favor of The Limited. 

Although on the surface this case was not technically complex, it was a very 
sensitive matter for all involved and required me to use not only my legal skills but 
also my judgment in handling a tense racially charged situation. I had to maintain 
the focus on the legal issues in the case and persuade the Court that this was a 
legal issue susceptible of resolution, and not a political issue. 

I had total responsibility for every aspect of this case, which was closely monitored 
by The Limited 's corporate office 



20 



558 



10) Symix v. LaRoque, Case No 95 CVH 06-4279; 295-CV-632 (US District Court) 

a Date of Representation: 1995- 1996 

b Court; The Court of Common Pleas, Franklin County 

Honorable Nodine Miller 

United States District Court for the Southern District of Ohio 
Honorable John Holschuh 

c. Co-Counsel: None 

d. Opposing Counsel: Rex H. Elliott, Esq. 

Cooper, Elliott & Connors 
17 South High Street 
Columbus, Ohio 43215 
(614)221-1177 

This was a breach of contract action brought by my client, Symix Systems, Inc. 
("Symix") against two ex-employees who were former members of the Symix 
management team Defendants counterclaimed, alleging wrongful discharge. It 
was a very contentious matter. Discovery covered a significant period of time, 
lasting approximately one year and involved issues ranging fi-om psychological 
damages to the First Amendment 

I had primary responsibility for the case and conducted all discovery, drafted 
pleadings and presented arguments before the court. The case was on parallel 
tracks in both the Federal Court and state court, and the federal case was held in 
abeyance pending resolution in the state court. Within approximately one year of 
commencing discovery, settlement discussions ensued. As we neared trial, I had to 
withdraw from litigation as one of my law partners, a board member at Symix, was 
slated to be a witness at the trial. Shortly after my withdrawal— and based on the 
negotiations that already had begun~this matter settled. 



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19. Legal Activities: Describe the most significant legal activities you have pursued, including 
significant litigation which did not progress to trial or legal matters that did involve 
litigation Describe the nature of your participation in this question. Please omit any 
information protected by the attorney-client privilege (unless the privilege has been 
waived). 

1 ) Winfrey, et al. v. Franklin County Community Based Correctional Facility, et al 
97CVH01 2225 

Our clients in this litigation are the Franklin County Community Based 
Correctional Facility ("CBCF") and the Franklin County Judicial Corrections 
Board ("JCB"). The CBCF is comprised of all of the judges on the Franklin 
County Court of Common Pleas The plaintiffs are former employees of CBCF 
who claim that their positions were wrongfully abolished and that their 
constructive discharge was based on race and sex discrimination. This case is still 
pending. 

The significance of this case is personal I have been selected as lead counsel to 
represent the judges of the Franklin County Court of Common Pleas in a 
significant employment discrimination matter. Having had jury trials before both 
Judge McGrath, the current JCB President, and Judge David Johnson, the past 
JCB President, I consider my selection to be a high compliment fi^om the judges, 
and a recognition from the judges of my skills as a litigator. Moreover, the 
implications of this case are far reaching inasmuch as precedent may be set for 
other community-based correctional facilities located throughout the state. I am 
therefore looking forward to the challenge of litigating what I am certain will be a 
very compelling case. 

2) United States v. Erickson, CR-2-93 -66 

United States District Court for Southern District of Ohio 
Honorable John Holschuh 

Our client, Vem Erickson, was a buyer for BMY Corporation ("BMY") BMY 
Corporation was, among other things, a supplier to the army. B\fY was under 
investigation by the U. S. Department of Justice for fraud in connection with 
certain contracts that BMY had with the Army. Mr. Erickson himself was accused 
of participating in BMY's fraudulent activity, but was persuaded to cooperate with 
the government in its investigation. Mr. Erickson did in fact cooperate and was 
sentenced to a term of probation. Under government contracting regulations, 
however, the Department of the Army decided to debar Mr. Erickson fi-om 
participation in any government contracting activity. Because Mr. Erickson spent 
much of his career in government contracting and had completed plans to open his 
own consulting firm, debarrment would have effectively ended his career. 



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I appealed the Department of the Army's decision to the Department of the Army 
Office of The Judge Advocate General We received a favorable decision from the 
hearing officer Because of the nature of the decision, the Army did not appeal. 
Under the terms of the order, Mr. Erickson was not excluded from participating in 
government contracts, working on behalf of government contractors, or otherwise 
being involved in government contracting activities. 

3) Kay Snyder v. The Bank of Marion. 

In this case, the Plaintiff, Kay Snyder, was a secretary/administrative assistant for 
one of the officers of the Marion Bank. She contacted me to handle her case, 
although she had some trepidation about our accepting her representation because 
she was under the impression that our law firm represented companies and not 
individuals. I took her representation because Ms. Snyder had what I believed to 
be a legitimate sexual harassment claim and, although she did not have the 
resources to prosecute the claim, we undertook the representation because of the 
personal appeal that she made 

At the time that I took the case, I was an associate at Vorys and enlisted the 
support of another colleague of mine who also was an associate. We negotiated 
with the Bank's counsel and, after several weeks of negotiations, were able to 
reach an amicable resolution without having to file suit. Mrs. Snyder was 
compensated, the Bank took the appropriate action with respect to its officer, and 
opposing counsel left that encounter with renewed respect for me. 

4) Minority Legal Education Resources Inc ("MLER") 

MLER is a not-for-profit corporation located in Chicago, Illinois, which began as 
an organization which assisted minority applicants in preparing for the Illinois Bar 
exam. I was first a participant in MLER then an instructor for several years. I 
later became a Board Member, and then President of the Board. The program was 
a supplement to the Bar Review course that was offered by various companies 
such as BAR/BRI. We met once a week and taught bar taking techniques with an 
emphasis on taking multiple choice examinations and writing. I taught in both 
sections. 

This was one of the most rewarding undertakings that I have been involved in as a 
lawyer. Many of the students we helped were individuals who had never taken the 
bar exam. We were able to impart not only our technical knowledge, but also 
insights to give first-time takers the confidence that they needed to pass the bar 
exam. However, a small percentage of people, from 10 to 20 percent in the 
summer program, and the majority of individuals who took our program in the 
winter, were persons who had failed the bar. It was a particular challenge to 
restore their sense of confidence and self esteem, while at the same time prepare 
them to prevail on the upcoming bar examination. It was most rewarding to share 



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with them the success of passing the bar after they had initially failed. As an 
organization, we had a second time pass rate that was higher than the national 
average. 

5) Teaching at the Capital University Law School. 

In the fall semester of 1995, 1 was an adjunct professor of Trial Advocacy at 
Capital University. (I have enjoyed teaching, as I taught criminal law and 
procedure on the undergraduate level at Northeastern Illinois University from 1985 
through 1986). Very few activities in which I have engaged have been more 
rewarding than teaching young lawyers to become skilled advocates 

6) The National Institute for Trial Advocacy. 

My pedagogical bent has led me to accept invitations to teach at the National 
Institute for Trial Advocacy ("NITA") from 1987 to the present. I have taught 
both the flill trial courses as well as the deposition courses. My teaching has been 
at the Midwest Course held at Northwestern University, and Nova University Law 
School in Fort Lauderdale, Florida. 1 have been invited to teach at Temple 
University, at the NITA program in Dallas and at Case Western Reserve 
University. In the NITA sessions, I have performed cross examination 
demonstrations for the entire student population, as well as direct examination 
demonstrations. I have been a team leader, the highest teaching rank, as well as 
section leader. As a team leader, I taught the course for approximately ten days, 
from beginning to end. As section leader, I was a part of a team and taught for a 
five day period. 

7) In connection with my teaching responsibilities, I also have given demonstrations 
for the Ohio State Bar Association, as well as the Committee on Regional 
Training, which was responsible for teaching trial advocacy to lawyers in the Legal 
Aid Societies for the states of Ohio and Michigan. 



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FINANCIAL DATA AND CONFLICT OF INTEREST 

1 . List sources, amounts and dates of all anticipated receipts from deferred income 
arrangements, stock, options, uncompleted contracts and other future benefits 
which you expect to derive from previous business relationships, professional 
services, firm memberships, former employers, clients, or customers. Please 
describe the arrangements you have made to be compensated in the future for any 
financial or business interest 

I have no deferred income arrangements, stock, options, uncompleted contracts, or 
fijture benefits which I expect to derive from previous business relationships, 
professional services, firm membership, former employers, clients or customers. 
When 1 resign as a partner in my law firm, I will receive my capital contribution to 
the partnership, which includes a buyout of my percentage ownership of the law 
firm. As of June, 1997, that amount (determined at the end of the quarter ending 
December 1996) is approximately $52,000.00 and would be paid to me upon my 
resignation from the partnership. The disbursement would include no future 
income of the law firm, and, I am advised, would be made within a month 
following my last month with the firm. 

I also have an account established pursuant to Section 401(k) of the Internal 
Revenue Code. There is approximately $36,000.00 in that account, of which I 
have full ownership. Upon resignation from the partnership, I would in all 
likelihood put that account into an individual retirement account in an institution 
unaffiliated with the law firm. 

2. Explain how you will resolve any potential conflict of interest, including the 
procedure you will follow in determining areas of concern Identify the categories 
of litigation and financial arrangements that are likely to present potential conflicts- 
of-interest during your initial service in the position to which you have been 
nominated. 

Through my law firm, I will identify all matters which are pending in the Southern 
District of Ohio in which any lawyer in the firm is the counsel of record. I will 
then identify to the Chief Judge for the Southern District of Ohio any and all 
matters which may present actual potential conflicts of interests I will be guided 
by the rules embodied in the Code of Judicial Conduct and any other governing 
ethical and/or disciplinary rules. 



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I do not anticipate any categories of litigation and financial arrangements that are 
likely to present potential conflicts of interest during my initial service on the 
Federal District Court Bench I do, however, have several matters pending before 
the United States District Court for the Southern District of Ohio and I will 
identify those specific matters to the Chief Judge. Any other categories of 
litigation which would present potential conflicts, of course, would involve cases 
that are pending with the court in which my firm is counsel of record 

3. Do you have any plans, commitments, or agreements to pursue outside 
employment, with or without compensation, during your service with the court? If 
so, explain. 

As a United States District Court Judge for the Southern District of Ohio, I intend 
to continue teaching in the National Institute for Trial Advocacy for which I would 
receive my per diem expenses if I am a group leader and a small stipend if I am a 
team leader. I also intend to continue to teach in both the trial practice and 
deposition courses, schedule permitting That commitment does not exceed two 
weeks annually. 

It is possible that I will teach again at Capital University Law School. That will 
depend, however, upon my caseload at the Court. I have no other specific plans, 
commitments or agreements to pursue outside employment while a Judge on the 
United States District Court for the Southern District of Ohio. 

4. List sources and amounts of all income received during the calendar year preceding 
your nomination and for the current calendar year, including all salaries, fees, 
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items 
exceeding $500. (If you prefer to do so, copies of the financial disclosure report, 
required by the Ethics in Government Act of 1978, may be substituted here.) 

See attached AO-10 Form (pages 31a - 3 Id). 

5. Please complete the attached financial net worth statement in detail. (Add 
schedules as called for.) 

See attached financial statement (page 3 1 e). 



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Have you ever held a position or played a role in a political campaign*^ If so, 
please identify the particulars of the campaign, including the candidate, dates of the 
campaign, your title and responsibilities 

Yes. I had a role in the 1993 re-election campaign of The Honorable Janet 
Jackson, then a Judge on the Municipal Court of Franklin County, Ohio I worked 
with my then law partner. The Honorable R Guy Cole, Jr. and Pat Logsdon, Judge 
Jackson's campaign manager, in raising money in the African American 
community. My involvement spanned the period from January 1993 through 
Judge Jackson's election in November 1993. 



m. GENERAL 



An ethical consideration under Canon 2 of the American Bar Association's Code 
of Professional Responsibility calls for "every lawyer, regardless of professional 
prominence or professional workload, to find some time to participate in serving 
the disadvantaged." Describe what you have done to fulfill these responsibilities, 
listing specific instances and the amount of time devoted to each. 

Big Brothers/Big Sisters Association . 

Serving as Secretary and Counsel to the Board of Big Brothers/Big Sisters 
Association of Franklin County. 

In my capacity as counsel to the Board of Big Brothers/Big Sisters Association of 
Franklin County ("BB/BS"), a mentoring organization which matches adults with 
children of the same sex from single-parent homes, I had the responsibility of 
serving as BB/BS's counsel on a variety of legal matters There was one matter 
which comes to mind which was of vital importance to the organization and whose 
resolution was essential to the continued well being of the organization both 
financially and from a public relations vantage point. That situation involved a 
threatened suit by the Stonewall Union, a gay and lesbian group, who contended 
that BB/BS did not allow matches between homosexual mentors and children. As 
BB/BS' lawyer, I was charged with the responsibility of avoiding this lawsuit and 
the attendant negative publicity which could have resulted. Through negotiations 
with counsel for the Stonewall Union, we were able to reach an agreement which 
avoided litigation and was satisfactory to both sides. 



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Salesian Boys and Girls Club . 

I have served on the Board of Directors of The Salesian Boys and Girls Club for 
the past seven years During that time, I have provided pro bono legal services to 
the Board on various legal matters that have arisen Those matters have included, 
but have not been limited to, counseling on employment matters, revising the By- 
Laws, counseling relating to the property issues as well as to insurance issues. The 
population served by the Boys and Giris Club is almost exclusively minority inner- 
city youth, who are economically disadvantaged. 

Slate V. Carlton Gary 

For the past three years I have assisted one of my law partners, James A. Wilson, 
in the habeas corpus proceedings involving Carlton Gary. Mr. Wilson was 
assigned the Cariton Gary matter by the American Bar Association Death Penalty 
Project Though I am not a member of the Death Penalty Project, nor a direct 
volunteer in it, I have assisted Mr Wilson in providing services for Mr Gary. 
Those services have included conducting a habeas corpus proceeding in the State 
of Georgia and helping to prepare various pleadings, motions and memoranda 
related to Mr Gary's habeas corpus proceeding. 

United Negro College Fund. Fund Raiser . 

For the past four years, I have been a fund-raiser for the United Negro College 
Fund ("UNCF") The UNCF helps economically disadvantaged students by 
providing financial assistance to historically Airican American colleges and 
universities. The fiands that ! assisted in raising are used primarily to provide 
scholarship funds for disadvantaged youth to attend college 

Innerbelt Chair for the United Way Campaign 

In 1995, 1 served as the Innerbelt Chairman for the Franklin County United Way 

Campaign My responsibility was primarily raising fiands from the downtown 

Columbus business community for a projected 36.1 million dollar campaign for the 

United Way. The United Way assists local agencies in providing services to the 

disadvantaged. 



The American Bar Association's Commentary to its Code of Judicial Conduct 
states that it is inappropriate for a judge to hold membership in any organization 
that invidiously discriminates on the basis of race, sex, or religion. Do you 
currently belong, or have you belonged, to any organization which discriminates ~ 
through either formal membership requirements or the practical implementation of 
membership policies? If so, list, with dates of membership. What you have done 
to try to change these policies'' 



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No, except that I am a member of the Omega Psi Phi Fraternity, Inc. which admits 
only men This is a college fraternity, which I joined as a graduate. The fraternity 
was founded in 1911 and is comprised primarily of African American males, 
although there are no racial restrictions and there are some white male members 
Most persons join during their college years and remain lifetime members. The 
members of Omega Psi Phi include a variety of men of diverse backgrounds. 

The Jefferson Golf and Country Club has no restriction on membership based on 
either gender or race Nor does it have restrictions on tee times. There is a men's 
only grill which most of the time is limited to the male members and their guests. 
That Grill Room, however, is occasionally open for mixed dining when the dining 
room itself is closed 

Is there a selection commission in your jurisdiction to recommend candidates for 
nomination to the federal courts? If so, did it recommend your nomination? 
Please describe your experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to your nomination and 
interviews in which you participated). 

Yes, the selection commission is the Ohio Judicial Review Commission. It 
recommended me for this nomination. The Commission is a five person bipartisan 
commission composed exclusively of lawyers from the Southern District of Ohio. 
It was chaired by Anthony J. Celebreeze (Columbus), a partner at Dinsmore & 
Shohl LLP, and included Ralph K. Frasier (Columbus), General Counsel for The 
Huntington National Bank, Michael Barrett (Cincinnati), a partner at Barrett & 
Weber; Beth Schaeffer (Dayton), a partner at Pickrel Schaeffer & Ebeling; and 
Gary Smith (Woodsfield), a partner at Sherry, Smith & Coury. 

The candidates were required to complete an application which is similar in many 
respects to the Senate Judiciary Committee's application for District Court Judges. 
The application had to be submitted along with any letters of reference that the 
candidates chose to include. After all applications were submitted, the 
Commission chose approximately ten candidates to be interviewed. The 
Commission conducted thirty-minute interviews of the candidates. Based on the 
interviews and the applications submitted, the Commission chose me as the 
candidate to be recommended to Senator Glenn. 

Senator Glenn then recommended me to President Clinton. I have since been 
investigated by the Federal Bureau of Investigation, the American Bar Association, 
and the Justice Department. 



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Has anyone involved in the process of selecting you as a judicial nominee 
discussed with you any specific case, legal issue or question in a manner that could 
reasonably be interpreted as asking how you would rule on such case, issue, or 
question'' If so, please explain fully 

No 

Please discuss your views on the following criticism involving "judiciai activism." 

The role of the Federal judiciary within the Federal government, and within society 
generally, has become the subject of increasing controversy in recent years It has 
become the target of both popular and academic criticism that alleges that the 
judicial branch has usurped many of the prerogatives of other branches and levels 
of government. 

Some of the characteristics of this "judicial activism" have been said to include: 

a. A tendency by the judiciary toward problem-solution rather than 

grievance-resolution, 

b. A tendency by the judiciary to employ the individual plaintiff as a 

vehicle for the imposition of far-reaching orders extending 
to broad classes of individuals, 

c. A tendency by the judiciary to impose broad, affirmative duties 

upon governments and society, 

d. A tendency by the judiciary toward loosening jurisdictional 

requirements such as standing and ripeness, and 

e. A tendency by the judiciary to impose itself upon other institutions 

in the manner of an administrator with continuing oversight 
responsibilities. 

Resolution of specific disputes is the function constitutionally delegated to 
our adversarial system of justice. The premise of the adversary system is that 
parties have a strong incentive to develop and present persuasively the facts that 
bear upon their individual dispute. Traditional doctrines such as standing and 
ripeness, among other things, help assure that the parties presenting a case have 
the necessary incentive to develop and present these facts. The responsibility of a 
judge, particularly a trial court judge, is to focus the trial or other resolution of a 
case upon the specific facts presented by the parties in that particular dispute. 
Most of the time, the challenge facing a trial judge is not creating or finding new 
law ~ it is assuring that the law is effectively applied to the case that the parties 
present 

Generally, the cou