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
13
99
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
100
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
101
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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102
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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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115
. 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."
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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.
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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.
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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
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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
Exhibit 3
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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
y-^tf
Notes payable to banks-secured
/
/O^
i>oo
U.S. Government securities - add
schedule
Notes payable to banks-unsecured
JLff
set
Listed secuhties-add schedule
Notes payable to relatives
UnUsted securities-add schedule
/<lLf
c c e
Notes payable to others
^-t
^eo
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
¥
7eo
Other assets-itemize:
Present Value DPK&K R^^e-
/
o9i
iee
Limited Partnership Int.
37
B eo
Retirement Accounts
«7 X.
J+-00
Total liabilities
-i
3S-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.
4¥z
foo
Have you ever taken bankruptcy? f^
Provision for Federal Income Tax
3^A
Sao
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.
-7-
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
-9-
168
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.
-10-
169
15. Citations : If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you
have written; (2) a short summary of and citations for
all appellate opinions where your decisions were
reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural
rulings; and (3) citations for significant opinions on
federal or state constitutional issues, together with
the citation to appellate court rulings on such
opinions. If any of the opinions listed were not
officially reported, please provide copies of the
opinions .
(1) Citations of Significant Opinions :
1. Berry v. State . 636 So. 2d 555 (Fla. 2d
DCA) , approved in part, disapproved in part .
647 So. 2d 830 (Fla. 1994) .
2. Bader v. Bader . 639 So. 2d 122 (Fla. 2d
DCA) (en banc), review denied . 649 So. 2d 232
(Fla. 1994) .
3. Stephenson v. State . 640 So. 2d 117 (Fla.
2d DCA 1994), approved . 655 So. 2d 86 (Fla.
1995) .
4. Kazakoff v. State . 642 So. 2d 596 (Fla. 2d
DCA 1994) (en banc) .
5. 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) .
-11-
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.
-12-
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.
-13-
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.
-14-
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.
•15-
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 .
-16-
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.
•19-
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
-25-
184
of my recollection, the case was
settled on remand.
Party Represented
Automatic Truck & Trailer Wash
Centers, Inc.
Nature of Participation in Case
I was actively involved in
litigating the case at the trial
court level in terms of drafting
pleadings, researching the law,
participating in pre-trial
depositions, and attending and
arguing motions at hearings. I was
equally active at the appellate
stage in terms of undertaking legal
research and preparing and drafting
the briefs. I do not recall,
however, whether I or my co-counsel
argued the case to the appellate
court .
Final Disposition of Case
It is my recollection that after
the appellate court reversed and
remanded the case the parties then
settled it.
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.
-27-
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
-28-
187
is now in a nursing home in the
Jacksonville, Florida area
suffering from Alzheimer's
disease. )
Mr. Terry Smiljanich
300 First Avenue South
Suite 500
St. Petersburg, Florida 33701
(813) 823-3837
3) Citation of Case
Johnson v. Farris . 469 So. 2d 221
(Fla. 2d DCA 1985)
Capsule Summary of Case
I filed a petition to modify the
custody provisions of a final
judgment of dissolution of marriage
on behalf of the former husband in
which he sought custody of his
minor child. The trial judge
dismissed the petition on the basis
that he did not have jurisdiction
under Florida's Uniform Child
Custody Jurisdiction Act. This
ruling was reversed on appeal, and
the case was remanded for further
proceedings. On remand, the case
was settled by the parties with the
former husband obtaining more
extensive visitation rights.
Party Represented
Mr. Cecil E. Johnson
Nature of Participation in Case
I prepared and filed pleadings in
the case, 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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188
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)
■30-
189
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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190
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),
-32-
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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192
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
-34-
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
-35-
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.
-39-
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
-40-
199
Second District Court of Appeal
upheld the dismissal.
Party Represented
Mr. Joseph Moore
Nature of Participation in Case
I represented Mr. Moore in
connection with his appearances
before the grand jury. After his
indictment, I undertook pre-trial
discovery, including the taking of
pre-trial depositions, engaged in
research of the law, and prepared,
filed, and argued pre-trial
motions, including the critical
motion to dismiss. I also
represented Mr. Moore on appeal,
which included more research of the
law, the preparation and filing of
appellate briefs, and oral argument
before the Second District Court of
Appeal .
Final Disposition 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
-43-
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
■46-
205
Mr. Hugh Smith
Smith & Fuller, P. A.
101 East Kennedy Blvd. -Suite 1800
Tampa, Florida 33602-5148
(813) 221-7171
Mr. Thomas Steele
Fowler, White, Gillen, Boggs,
Villareal & Banker, P. A.
501 E. Kennedy Blvd. -Suite 1700
Tampa, Florida 33602
(813) 228-7411
Mr. 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-
-47-
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
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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
-3-
228
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.
-4-
229
A. Richard Caputo
13. Health : What is the present state of your health? List
the date of your last physical examination.
On October 16, 1993, I suffered a heart attack.
On October 25, 1993, I had coronary artery bypass surgery
which involved three (3) grafts. I was hospitalized at
Wilkes-Barre General Hospital, Wilkes-Barre, Pennsylvania
from October 16, 1993, to November 1, 1993. I began to work
in January, 1994, on a part-time basis and resumed full-time
practice in April, 1994. I have recovered and function as
well as before the episode and surgery.
Since October, 1993, examinations are ongoing every
three (3) to five (5) months.
14. Judicial Office : State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations : If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state 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:
-5-
230
A. Richard Caputo
1. whether you served as clerk to a judge, and
if so, the name of the judge, the court, and
the dates of the period you were a clerk; No.
2. whether you practiced alone, and if so,
the addresses and dates; No.
3. the dates, name and addresses of law firms
or offices, companies or governmental agencies
with which you have been connected, and the
nature of your connection with each;
August 1963-Septerober 1964 : Charles A. Shea, Jr., Esquire
626 First Eastern Bank Bldg. , Wilkes-Barre,
Pennsylvania, 18701; research, drafting pleadings,
briefs and memoranda.
September 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
-6-
231
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.
-7-
232
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
-9-
234
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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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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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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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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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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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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262
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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263
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
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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
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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.
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277
A. Richard Caputo
EXHIBIT "2"
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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
-3-
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
-4-
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.
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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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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.
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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
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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
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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
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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)
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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,
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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
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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.
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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
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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.
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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
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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.
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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.
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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,
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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
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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
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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
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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 -
434
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445
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.
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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.
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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).
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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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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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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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Sotomavor Senate Questionnaire
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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486
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
487
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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Sotomavor Senate Questionnaire
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
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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.
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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.
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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.
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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.
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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
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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 
