[Congressional Record Volume 140, Number 126 (Monday, September 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: September 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE RECORD OF JUDGE SAROKIN
Mr. HATCH. Mr. President, President Clinton has nominated Judge H.
Lee Sarokin to a seat on the U.S. Court of Appeals for the Third
Circuit. I have decided that I must vote against this nomination and
look forward to explaining my reasons during floor debate. For now, I
ask unanimous consent that a memorandum analyzing the record of Judge
Sarokin be included in the Record.
There being no objection, the memorandum was ordered to be printed in
the Record, as follows:
Judge Sarokin's Record
H. Lee Sarokin, President Clinton's nominee to the U.S.
Court of Appeals for the Third Circuit, was appointed by
Jimmy Carter to the federal district court in New Jersey in
1979. Since that time, Judge Sarokin has earned a reputation
as a stridently liberal judicial activist who pursues his own
ideological agenda in lieu of applying the law. On a broad
range of telltale issues, such as crime, quotas and reverse
discrimination, pornography, and minimal standards of decency
and behavior in public life, Judge Sarokin has sought to
impose his own moral vision. In so doing, he has ignored,
defied, and even stampeded binding precedent and higher
authority, and has flaunted his own biases and sentiments on
the sleeve of his judicial robe.
These are not just the views of outside critics. The Third
Circuit itself has, for example, lambasted Judge Sarokin for
``judicial usurpation of power,'' for ignoring ``fundamental
concepts of due process,'' for destroying the appearance of
judicial impartiality, and for ``superimpos[ing his] own view
of what the law should be in the face of the Supreme Court's
contrary precedent.'' The New Jersey Law Journal (9/14/92)
has reported that Judge Sarokin ``may be the most reversed
federal judge in New Jersey when it comes to major cases.''
One can expect that these problems will surely be aggravated
if Judge Sarokin enjoys the greater freedom of a circuit
judge.
Organizations that have announced their opposition to Judge
Sarokin's nomination include the Fraternal Order of Police,
the Law Enforcement Alliance of America, the New Jersey State
Police Survivors of the Triangle, the U.S. Business and
Industrial Council, Organized Victims of Violent Crime, the
League of American Families, Citizens for Law and Order,
Citizens Against Violent Crime, and Voices for Victims, Inc.
This memorandum provides a detailed look at certain of
Judge Sarokin's opinions that are all too illustrative of his
approach to judging, as well as an overview of his
manifestations of bias and ideology in cases and speeches.
i
(Kreimer v. Bureau of Police for the Town of Morristown, 765 F. Supp.
181 (D.N.J. 1991), rev'd, 958 F.2d 1242 (3rd Cir. 1992))
Facts
Kreimer, a homeless man who lived in various outdoor public
spaces in Morristown, New Jersey,\1\ frequented the public
library in Morristown. According to library staff, Kreimer
often exhibited offensive and disruptive behavior,
including staring at and following library patrons and
talking loudly to himself and others. Also, according to
library staff, Kreimer's odor was so offensive that it
prevented the library patrons from using certain areas of
the library and prohibited library employees from
performing their jobs. A logbook instituted to catalog
disciplinary problems faced by the library described
incidents such as ``Kreimer's odor prevents staff member
from completing coping task,'' ``Kreimer spent 90
minutes--twice--staring at reference librarians, ``Kreimer
was belligerent and hostile towards [the library
director], and ``Patron [was] followed by Kreimer after
leaving Library.''
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Footnotes at end of article.
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In 1989, the library enacted a written policy prohibiting
certain behavior in the library and authorizing the library
director to expel persons who violated them. The policy
included the following rules:
``1. Patrons shall be engaged in activities associated with
the use of a public library while in the building. Patrons
not engaged in reading, studying, or using library materials
shall be required to leave the building. * * *
``5. Patrons shall respect the rights of other patrons and
shall not harass or annoy others through noisy or boisterous
activities, by staring at another person with the intent to
annoy that person, by following another person about the
building with the intent to annoy that person, * * * by
singing or talking to others or in monologues, or by behaving
in a manner which reasonably can be expected to disturb other
persons.
``6. Patrons shall not interfere with the use of the
Library by other patrons, or interfere with Library
employees' performance of their duties. * * *
``9. * * * Patrons whose bodily hygiene is offensive so as
to constitute a nuisance to other persons shall be required
to leave the building.
``Any patron not abiding by these or other rules and
regulations of the library shall be asked to leave the
library premises.''
After he was expelled from the library at least five times
for violating these rules, Kreimer sued the library and
others in federal district court, alleging that the library's
policy violated the First Amendment and the Due Process and
Equal Protection Clauses of the 14th Amendment.
Judge Sarokin's rulings
Judge Sarokin, in granting summary judgment in favor of
Kreimer, ruled that the library policy was facially
unconstitutional. Judge Sarokin's opinion included the
following rulings:
1. The Library Policy Is Not A Reasonable Time, Place, And
Manner Regulation. ``[A] public library is not only a
designated public forum, but also a `quintessential,'
`traditional' public forum.'' Government restrictions on
access to a public library must therefore be narrowly
tailored to serve a significant state interest and must leave
open alternative channels of communications. The library
policy is not specifically designed to address disruptive
activity, and is therefore, not a reasonable time, place, and
manner regulation that is narrowly tailored to serve a
significant government interest. Denying a patron all access
to library materials leaves no alternative channels open to
those without private means of access to the quantity and
diversity of written communications contained in a library.
2. The Library Policy Is Unconstitutionally Overbroad.
Rules 1 and 5 are substantially overbroad. In Brown v.
Louisiana, 383 U.S. 131 (1966), the Supreme Court reversed
the convictions under a Louisiana breach-of-peace statute of
five black men who peaceably protested in a library. The
protesters in Brown would be prevented from engaging in the
same constitutionally protected protest if they staged it in
the Morristown library. This demonstrates that rule 1 is
substantially and unconstitutionally overbroad. Rule 5 is
unconstitutionally overbroad because it excludes patrons for
silently staring at another with the intent to annoy. This is
no different from the statutes in Brown and Cox v. Louisiana,
379 U.S. 536 (1965), which excluded people from public spaces
for activity that annoyed people but that did not actually
case or threaten a disruption.
3. The Library Policy Is Unconstitutionally Vague. Although
the library policy is not a penal statute, failure to comply
with the policy results in criminal trespass. Accordingly, a
criminal sanction is involved, and the policy should be
subject to a strict vagueness challenge. Rule 1 is hopelessly
vague. Rules 5 and 9 are unconstitutionally vague as well,
since the ``annoyance'' standard is no standard at all, and
the ``offensiveness'' standard is perfectly vague and subject
to arbitrary and discriminatory enforcement.
4. The Library Policy Violates Substantive Due Process.
Under the Due Process Clause, the government may not
penalize, or afford different treatment to, a disfavored,
disliked individual or class of people. Rule 9's prohibition
on offensive hygiene makes personal attributes such as
appearance, smell, and cleanliness determinative factors and
is not limited to actual, material disruptions. The policy
was designed with the explicit intention of restricting
Kreimer's (and other homeless persons') access to the
library. This reader-based restriction ``is analogous to
prohibited speaker-based restrictions. In this case, the
restriction is not because of the reader's views, but
because of plaintiff's other personal attributes which the
library staff finds `annoying.'''
5. The Library Policy Violates The Equal Protection Clause.
The library's effort to exclude homeless persons who may
potentially use the library as temporary shelter from the
elements violates the Equal Protection Clause. Just as a poll
tax for voting draws an improper line based on wealth, so
does the library's hygiene rule, since it has a disparate
impact on those poor patrons who do not have regular access
to shower and laundry facilities.
6. The Library Policy Violates Article I of the New Jersey
Constitution. The policy's restrictions are not reasonable.
The Third Circuit's reversal
The Third Circuit, in a lengthy and thorough opinion,
unanimously reversed, making the following rulings:
1. A public library is sufficiently dissimilar to a public
park, sidewalk, or street that it cannot reasonably be deemed
to constitute a traditional public forum. Nor is it a full-
scale designated public forum. Instead, under Supreme Court
precedent, it is a limited public forum. Restrictions that do
not limit those First Amendment activities that the
government has specifically permitted in a limited public
forum need only be reasonable and not viewpoint-based. The
library policy is reasonable.
2. The library policy is not substantially overbroad. The
district court's heavy reliance on Brown was improper; in
fact, the Court in Brown specifically relied on the fact that
the protesters did not violate any library regulations.
3. The library policy is not unconstitutionally vague. The
district court's use of the vagueness standard applicable to
criminal statutes was misplaced, since the library policy is
civil in nature and a criminal trespass requires a voluntary
act distinct from violation of the rules. The policy does not
simply proscribe ``annoying'' behavior; it lists specific
behavior deemed to be annoying. The determination whether a
person's hygiene is so offensive as to constitute a nuisance
involves an objective reasonableness test.
4 and 5. The library policy does not violate due process or
equal protection. The homeless do not constitute a suspect
class. The policy is not arbitrary, and the library did not
act with a discriminatory intent.
6. The library policy does not violate the New Jersey
constitution. Under New Jersey Supreme Court precedent, the
policy is clearly reasonable.
Analysis
Judge Sarokin's opinion in Kreimer is liberal judicial
activism at its worst. Each of Judge Sarokin's rulings noted
above is not just wrong, but patently wrong. Judge Sarokin
does not simply misread precedent; he defies it and distorts
it in furtherance of an ideology that prevents a community
from enforcing even minimal standards essential to the public
good. By effectively giving Richard Kreimer a right to
disrupt and disturb a library, Judge Sarokin deprives the
mass of citizens of the right to use a library in peace.
As the Wall Street Journal noted in a fine editorial (6/12/
91), the conduct that Judge Sarokin protects when engaged in
by a homeless man would never be tolerated if done by anyone
else: ``When a college professor or business executive looks
at a woman in a way she considers disturbing, he nowadays may
be subject to reprimands, departmental hearings, threats to
his job and status, and accusations of sexual harassment. Mr.
Kreimer, on the other hand, has been treated as a hero,
embraced by the politically correct who have apparently
decided that harassing women is acceptable so long as the
harasser is homeless.''
The following comments correspond to the above-numbered
rulings in Judge Sarokin's opinion and should be read in
conjunction with the sound criticisms made by the Third
Circuit:
1. Judge Sarokin does not cite any precedent in support of
his assertion that a library is a traditional public forum.
Nor could he, for the assertion is ludicrous under Supreme
Court precedent. Judge Sarokin's assertion that the library
is a full-fledged designated public forum is also without any
support in precedent. Can anyone who has heard a librarian's
shush state in good faith that a library is ``devoted to
assembly and debate''? Remarkably, Judge Sarokin does not
even explore the alternative that the library is a limited-
purpose public forum.
2. Judge Sarokin's overbreadth analysis misstates the
holding of Brown. In stating that the Brown protesters
engaged in a ``constitutionally protected protest,'' Judge
Sarokin attributes to the Court a position taken only by a 3-
Justice plurality, as Justice Brennan's opinion concurring in
the judgment makes clear. What remains of Judge Sarokin's
overbreadth analysis is the sort of hyperimaginative
hypothesizing that could doom every statute.
3. One wonders how any policy could survive Judge Sarokin's
vagueness analysis. The library policy is carefully drafted.
4. On the due process issue, Judge Sarokin's observation
that the policy implements a ``reader-based restriction'' is
refuted by his observation that ``the restriction is not
because of the reader's views.'' Amazingly, Judge Sarokin
places these statements back to back, as though the second
bolsters the first.
5. Judge Sarokin's creation of a suspect class defined by
poor hygiene or homelessness has no basis in equal protection
precedent. His use of disparate impact analysis also defies
the Supreme Court's decision in Washington v. Davis, which
makes clear that discriminatory intent (along a recognized
suspect line) is necessary to trigger strict scrutiny.
Judge Sarokin's hearing testimony
Judge Sarokin painted a very misleading picture of Kreimer
at his hearing:
``There were two issues that were presented to me. * * *
The first one was whether or not there was a constitutional
right of access to the library under the First Amendment. I
said that there was, and the Third Circuit agreed. * * *
[T]he only issue with which the Third Circuit disagreed was
whether or not the regulations were vague and overbroad. They
did not disagree about the First Amendment analysis.'' [46:1-
5, 19-22]
Judge Sarokin's summary of Kreimer is mistaken or distorted
in the following elemental respects:
As noted above, there were at least six seaparate legal
claims decided by Judge Sarokin: (a) whether the library
policy was not a reasonable time-place-and-manner regulation
under the First Amendment; (b) whether it was
unconstitutionally overbroad; (c) whether it was
unconstitutionally vague; (d) whether it violated substantive
due process; (e) whether it violated equal protection; and
(f) whether it violated Article I of the New Jersey
Constitution. Judge Sarokin decided each of these claims in
Kreimer's favor. The Third Circuit reversed Judge Sarokin on
every claim. In short, Judge Sarokin was 0-for-6, not 1-for-
2.
The question whether the First Amendment was implicated at
all by the library policy was a minor (and easy) part of the
determination whether the policy was a reasonable time-place-
and-manner regulation. Judge Sarokin properly devoted only
about a half-page of his 17-page opinion to this issue, yet
he now incorrectly states that this was one of two major
issues in the case.
The real question on the basic First Amendment analysis was
what standard of review applies. Judge Sarokin held, without
any basis in precedent, that a library is both a traditional
public forum and a full-fledged designated public forum and
that strict scrutiny therefore applied. These holdings are
strikingly groundless, and were repudiated by the Third
Circuit. In short, the Third Circuit did ``disagree about the
First amendment analysis''--and it did so vigorously.
Did Judge Sarokin not even recall that he had relied on
unprecedented uses of substantive due process and equal
protection to strike down the library policy? Is a judge who
wields these weapons so carelessly and thoughtlessly fit for
elevation to the Third Circuit? These two constitutional
provisions, if misused, are among the most powerful available
to a judge who seeks to substitute his own views for those of
the legislative branch.
In defending his overbreadth analysis in Kreimer, Judge
Sarokin incorrectly asserted that the Supreme Court in Brown
v. Louisiana ``specifically held that that kind of activity
[(a silent protest in a library)] could not be prohibited.''
[48:22-23] In fact, only a 3-Justice plurality took this
position, as Justice Brennan's opinion concurring in the
judgment emphasizes. Yet, even after Senator Thurmond pointed
out Judge Sarokin's error [49:1-7], Judge Sarokin stubbornly
persisted in presenting his incorrect account of Brown v.
Louisiana [120:7-16].
ii
(Haines v. Liggett Group, Inc., 140 F.R.D. 681 (D.N.J. 1992), writ
granted, 975 F.2d 81 (3rd Cir. 1992); Cipollone v. Liggett Group, Inc.,
799 F.Supp. 466 (D.N.J. 1992))
Haines: Facts and rulings
In a personal injury action against cigarette
manufacturers, Haines sought discovery of certain documents
that the defendant companies said were protected by the
attorney-client privilege. Haines argued that even if the
documents were within the scope of the attorney-client
privilege, the crime-fraud exception applied and annulled the
privilege. A magistrate judge determined that the documents
were privileged and that the crime-fraud exception did not
apply.
Haines appealed the magistrate judge's order to Judge
Sarokin. Judge Sarokin ordered the parties to supplement the
record with materials from the record in a similar case,
Cipollone, in which he was the trial judge. He then issued a
ruling that the crime-fraud exception did apply and that
Haines was entitled to discovery of the documents at issue.
Several aspects of Judge Sarokin's opinion merit attention:
1. Judge Sarokin opened his opinion on this discovery
dispute with this prologue:
``In light of the current controversy surrounding breast
implants, one wonders when all industries will recognize
their obligation to voluntarily disclose risks from the use
of their products. All too often in the choice between the
physical health of consumers and the financial well-being of
business, concealment is chosen over disclosure, sales over
safety, and money over morality. Who are these persons who
knowingly and secretly decide to put the buying public at
risk solely for the purpose of making profits and who believe
that illness and death of consumers is an appropriate costs
of their prosperity!
``As the following facts disclose, despite some rising
pretenders, the tobacco industry may be the king of
concealment and disinformation.''
2. In holding that the magistrate judge's ruling could not
survive under even the ``clearly erroneous'' standard of
review, Judge Sarokin relied not only on the supplemental
evidence that he ordered from the Cipollone trial but also on
his ``own familiarity with the evidence adduced at the
Cipollone trial discussed in the directed verdict Opinion''
in that case. 140 F.R.D., at 694. Judge Sarokin stated that
having heard the trial evidence in Cipollone, he was ``in the
unique position of being able to evaluate the full scope of
evidence supporting plaintiff's crime/fraud contention in the
instant case.'' Id., at 694 n. 12.
3. In a stated effort to show ``some of the most damaging
evidence'' on this crime-fraud exception, Judge Sarokin
quoted extensively from those documents as to which privilege
had been asserted. Judge Sarokin claimed to be ``recognizing
the sensitive task of fulfilling the court's duty to support
and justify its holding while temporarily preserving the
confidentiality of otherwise privileged documents.'' 140
F.R.D., at 695.
Third Circuit reversal
In a remarkably impressive opinion, the Third Circuit
unanimously granted an extraordinary writ vacating Judge
Sarokin's order and removing him from the case. The following
aspects of the Third Circuit's opinion are noteworthy:
1. Quoting, and commenting on, Judge Sarokin's opening, the
Third Circuit stated that Judge Sarokin ``issued an opinion
and order purportedly addressing the applicability of the
crime-fraud exception and not the ultimate merits of the
plaintiff's claims, yet the opening paragraphs of the opinion
appear to address the merits.'' 975 F.2d, at 87.
2. The Third Circuit emphasized that a write was an
``extreme'' remedy to be used ``only in extraordinary
situations'' and that ``only exceptional circumstances
amounting to a judicial usurpation of power will justify the
invocation of this extraordinary remedy.'' 975 F.2d, at 88
(internal quotes omitted and emphasis added).
3. The Third Circuit ruled that under the statute providing
that the district court review the magistrate judge's order
under the ``clearly erroneous'' standard, ``the district
court is not permitted to receive further evidence.'' 975
F.2d, at 91. It noted that our ``common law tradition [does
not] permit a reviewing court [(in this case, the district
court)] to consider evidence which was not before the
tribunal of the first instance.'' Id., at 92. Because Judge
Sarokin considered portions of the Cipollone record that were
not in the record before the magistrate judge, his order
could not stand. Id. at 93.
4. The Third Circuit also held that ``fundamental concepts
of due process'' required that the defendant companies be
given a hearing on whether the crime-fraud exception applies.
975 F.2d, at 97.
5. The Third Circuit sharply scolded Judge Sarokin for
disclosing the contents of the documents as to which
privilege had been claimed:
``This, too, must be said. Because of the sensitivity
surrounding the attorney-client privilege, care must be taken
that, following any determination that an exception applies,
the matters covered by the exception be kept under seal or
appropriate court-imposed procedures until all avenues of
appeal are exhausted. Regrettably this protection was not
extended by the district court in these proceedings. Matters
deemed to be excepted were spread forth in its opinion and
released to the general public. In the present posture of
this case, by virtue of our decision today, an unfortunate
situation exists that matters still under the cloak of
privilege have already been divulged. We should not again
encounter a casualty of this sort.'' 975 F.2d, at 97.
At his hearing, Judge Sarokin acknowledged only that his
disclosure of privileged documents ``probably was an error.''
[33:24]
6. In what the Third Circuit described as ``a most
agonizing aspect of this case,'' it then removed Judge
Sarokin from the case on the ground that the prologue to his
opinion destroyed any appearance of impartiality. The court
noted that the prologue stated ``accusations'' on the
``ultimate issue to be determined by a jury'' in the case:
whether defendants ``conspired to withhold information
concerning the dangers of tobacco use from the general
public.'' It further noted that Judge Sarokin's remarks
were reported prominently in the press throughout the
nation. 975 F.2d, at 97-98.
Cipollone
After the Third Circuit removed him from the Haines case,
Judge Sarokin recused himself from further action in
Cipollone. His brief opinion on recusal (799 F.Supp. 466)
included two notable remarks:
1. ``It is difficult for me to understand how a finding
based upon the evidence can have the appearance of partiality
merely because it is expressed in strong terms.''
2. ``I fear for the independence of the judiciary if a
powerful litigant can cause the removal of a judge for
speaking the truth based upon the evidence, in forceful
language that addresses the precise issues presented for
determination. If the standard established here had been
applied to the late Judge John Sirica, Richard Nixon might
have continued as President of the United States.''
Comments on Haines and Cipollone:
1. The Third Circuit's observations that Judge Sarokin's
ruling amounts to a ``judicial usurpation of power,'' is
contrary to our ``common law tradition,'' ignores
``fundamental concepts of due process,'' eviscerates the
defendants' rights of appeal, and destroys any appearance of
impartiality scratches only the surface of Judge Sarokin's
betrayal of the role of a Judge in this litigation. Among
other things:
Consider some of the many other respects in which Judge
Sarokin's prologue is grossly inappropriate: What do his
blanket assertions about the values of businessmen say about
his ability to preside fairly in any dispute between an
individual and a business? To whom is he referring as the
other ``rising pretenders'' to the throne of ``concealment
and disinformation''?
At his hearing, Judge Sarokin ultimately made only a modest
concession: ``I concede that the language was strong and
maybe unduly strong; and if I could take it back, I probably
would.'' [60:11-13] The fact of the matter is that Judge
Sarokin could have taken it back: these were carefully
composed written comments, not off-the-cuff oral remarks.
Judge Sarokin also stated that ``I was also hoping that I
could discourage the tobacco companies from continuing to
conceal the risks of smoking and deny that they existed.''
[110:20-23] This statement vindicates the Third Circuit's
concern that Judge Sarokin was broadcasting his opinion on
the ultimate issue to be decided by the jury.
Judge Sarokin's reliance in Haines on his familiarity with
the evidence in Cipollone is a flat admission of
predisposition and bias. He is ``unique[ly] position[ed]'' to
decide the issue only in the sense that he has already made
up his mind.
Judge Sarokin's comments in his recusal opinion in
Cipollone show that he just doesn't get it. It is bad enough
that he does not acknowledge that his prologue did not
``address[] the precise issues presented for
determination''--whether the magistrate judge had committed
clear error in determining that certain documents fell
outside the crime-fraud exception to the attorney-client
privilege--but instead opined, in flamboyant, media-baiting
language, on the ultimate issue to be determined by the jury.
It is even worse that he casts aspersions on the judges on
the Third Circuit panel by charging that they had not
exercised independent legal judgment but rather that a
``powerful litigant'' had ``caused'' them to decide as they
did.
At his hearing, Judge Sarokin claimed, ``I did not mean to
suggest in any way that because they [the tobacco companies]
were powerful, that the Third Circuit did something they
would not otherwise have done. I never meant to convey that
in that language.'' [36:20-24] But that is precisely what he
conveyed.
This was not the first time that the Third Circuit had to
use the extraordinary writ to overturn a lawless discovery
order by Judge Sarokin against these same defendants. See
Cipollone v. Liggett Group, 785 F.2d 1108 (3rd Cir. 1986),
granting writ vacating 106 F.R.D. 573.
2. Unchastened by his well-earned scolding, Judge Sarokin
personally accepted ``the C. Everett Koop Award for
significant achievement toward creating a smokefree
society,'' awarded by the New Jersey Group Against Smoking
Pollution (GASP). (New Jersey Lawyer, 6/7/93). According to
one news account, `` Sarokin won the award for sentiments
contained'' in his Haines opinion. (New Jersey Law Journal,
6/7/93.) That a judge would accept an award for an opinion in
a particular case is disturbing enough as an ethical matter.
That he would do so for a case in which he had already been
found to have destroyed the appearance of impartiality is
breathtaking in its brazenness.
At his hearing, Judge Sarokin claimed that ``[t]hree or
four very nice elderly people came up to my chambers'' to
present the award. ``Frankly, I had some doubts about the
propriety of taking it, but I just didn't want to hurt their
feelings by handing it back to them and saying I can't accept
it. * * * I just didn't have the heart to say to them, no,
take this back.'' [117:20-118:6]
Judge Sarokin's admission that he was ruled by his heart
rather than his head on this issue of impartiality
illustrates the very problem that pervades his opinions.
3. It should be noted that in removing him from Haines, the
Third Circuit stated that Judge Sarokin ``is well known and
respected for magnificent abilities and outstanding
jurisprudential and judicial temperament.'' In context, this
can only be understood as sugarcoating a bitter pill.
III
(Blum v. Witco Chemical Corp. (``Blum II''), 702 F. Supp. 493 (D.N.J.
1988), rev'd, 829 F.2d 367 (3rd Cir. 1987))
Facts and ruling
Plaintiffs who prevailed in an age discrimination suit
received a statutory award of attorney's fees. Judge Sarokin
increased the fee award by a 20% multiplier to compensate for
the risk that counsel had undertaken in taking the case on a
contingency basis: i.e., and the plaintiffs lost, counsel
would have received no payment. On initial review, the Third
Circuit remanded so that the district court could apply the
approach adopted in an intervening Supreme Court case,
Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air 483 U.S. 711 (1987). In addition, the Third Circuit gave
extensive guidance on how Delaware Valley should be applied.
See 829 F.2d 367, 379-382 (3rd Cir. 1987).
On remand, Judge Sarokin first criticized and sarcastically
attacked the Supreme Court opinion in Delaware Valley and the
Third Circuit opinion ordering remand. E.g.:
``The Supreme Court has sent a Christmas gift to this court
delivered via the Third Circuit Court of Appeals. It is
called `How To Make an Attorney Fee Multiplier.''' However,
the instructions are so confusing and inconsistent that this
court has been unable to put the `gift' together. Before
dealing with the specific instructions received, it is
necessary to consider what it is that we are to construct. *
* *
``The court fears * * * that both the Supreme Court and the
Third Circuit Court of Appeals have designed an erector set
from which no attorney will ever be able to build a valid
claim for a contingency enhancement or multiplier.
``Initially, the Supreme Court has held that determination
of this issue requires a marketwide analysis of the legal
community and is not to be resolved by considerations of the
specific risk encountered in the particular litigation under
consideration. This court respectfully submits that evidence
of the practices and expectations in non-statutory fee cases
[i.e., marketwide] is not relevant. * * * [Moreover,] it is
doubtful that analysis of the risk of a specific case can be
avoided. * * *
``Reading between the lines of both the Supreme Court and
the Third Circuit's opinions in this matter, one may conclude
that multipliers or other enhancers are so disfavored as to
be virtually non-existent. * * * [T]he proof required by
these two decisions is so elusive, burdensome and expensive
that the prospect of a hearing to obtain such relief is
sufficient in and of itself to discourage counsel who
otherwise would undertake such matters.'' 702 F. Supp., at
494-496 (citizen omitted).
Judge Sarokin nonetheless purported to be ``duty bound to
apply the decisions above to the facts of this case.'' 702 F.
Supp., at 497. Despite finding that plaintiffs' evidence
failed to provide ``a basis to make a market-based
quantitative finding'' and did not include ``any
substantiated amount by which fees need to be enhanced,''
Judge Sarokin ordered that a 50% contingency multiplier be
added to the attorney's fees awarded. Id., at 500.
Third Circuit reversal
The Third Circuit, in an opinion by Judge Sloviter (a
Carter appointee), unanimously reversed. The Third Circuit
found that Judge Sarokin had simply defied the Supreme
Court's opinion in Delaware Valley and the Third Circuit's
previous guidance:
``[W]e remanded * * * in light of the Supreme Court's
opinion in Delaware Valley II. Instead, the district court,
without concealing its disapproval of both the Supreme
Court's decision and ours, proceeded in accordance with its
own views.'' 888 F.2d, at 977 (emphasis added and citation
omitted).
The Third Circuit cited ``at least four respects'' in which
Judge Sarokin had deviated from precedent:
1. ``It appears that the court proceeded to follow its own
view of the relevant market in ascertaining the availability
of adequate legal representation.''
2. ``In making its determination on the risk associated
with this individual case, the court failed to follow the
clear direction of [the Third Circuit and the Supreme Court].
. . . The district court made no secret of its disagreement
with the instruction it received on this issue.''
3. ``[I]n another departure from the task set for it, the
district court established a contingency multiplier for this
individual case rather than setting a standard which would be
applicable to future litigation within the same market.''
4. ``Finally, and perhaps most importantly, although the
district court concluded that the plaintiffs had failed to
meet their burden of proof by not quantifying the contingency
premium, the court nonetheless relieved the plaintiffs of
their burden of proof.'' 888 F.2d, at 981-983.
Evidently concerned that Judge Sarokin didn't understand
his role as a lower court judge, the Third Circuit concluded:
``[T]he error with the district court's judgment was that
the 50 percent multiplier it arrived at was supported only by
the court's own intuition. This is precisely what the Supreme
Court and this court held is impermissible. Neither the
district court nor this court is free to superimpose its own
view of what the law should be in the face of the Supreme
Court's contrary precedent. Unless and until that Court
revises its view or promulgates an opinion of the majority
that clarifies the determination that must be made to support
a contingency multiplier, the district court and we are bound
to the exposition of the law set out in Blum I.'' 888 F.2d,
at 983-984.
Comments
1. The particular legal issue at stake in this case is not
important. What is important is that, as the Third Circuit
itself recognized, Judge Sarokin defiantly refused to follow
precedent and instead ``proceeded in accordance with his own
views'' and his ``own intuition.'' Notably, Judge Sarokin did
so even while professing to put aside his own criticisms and
follow precedent.
2. Judge Sarokin's open contempt for the opinions of higher
courts reflects a serious lack of judicial temperament.
3. The Supreme Court ultimately went even further than
Delaware Valley and held that contingency multipliers are
never appropriate. See City of Burlington v. Dague, 112 S.
Ct. 2638 (1992). It this completely repudiated Judge
Sarokin's position.
iv
(U.S. v. Rodriguez, Crim No. 84-18 (D.N.J. 1984))
Facts
Raul Rodriguez was arrested on theft-related charges. At
the time of his arrest, he was advised of his rights and
provided only minimal information to the police. He spent the
night in jail and was then transported to FBI headquarters,
where he was handed a form in Spanish advising him of his
rights and sitting that (by his signature) he agreed to waive
them. He read the first paragraph of the form aloud and
signed the form with the false name Lazaro Santana. He then
answered certain questions asked of him by an FBI agent. An
hour later, he was brought before a magistrate; informed that
he was entitled to counsel, he stated that he wished to have
counsel appointed for him. From arrest to arraignment, 20\1/
2\ hours had passed. An FBI agent testified that the purpose
of bringing Rodriguez to FBI headquarters instead of directly
to the magistrate was to obtain additional information from
him.
Despite expressly finding that Rodriguez read the form and
was aware of his rights before he spoke with the FBI agent,
Judge Sarokin granted Rodriguez' motion to suppress evidence
of his statements to the FBI agent. Judge Sarokin offered two
reasons in support of his conclusion that Rodriguez did not
waive his Miranda rights and that his statement should
therefore be deemed involuntary:
(1) Rodriguez didn't sign his own name to the waiver form.
He signed the name Lazaro Santana. ``[I]t does not strain
logic to find the use of a name other than one's own to be
wholly inconsistent with a voluntary waiver of rights:
defendant might well have believed that by using a false name
he was not committing himself to anything. But see United
States v. Chapman, 488 F. 2d 1381, 1386 n. 7 (3d Cir. 1971)
(contention that signature was not one's own is not relevant
to the issue of the voluntariness of the confession).'' (Yes,
the ``but see'' cite to contrary Third Circuit authority is
part of Sarokin's opinion!)
(2) Upon his appearance before the magistrate--the first
point at which he was orally asked, in Spanish, whether he
wanted a lawyer--he said he did. This ``certainly gives rise
to an inference of non-voluntariness with respect to the
earlier waiver,'' especially since the delay between the time
of arrest and time of arraignment was long.
Comments
1. Judge Sarokin objects to the fact that the police took
Rodriguez to the FBI headquarters rather than directly to a
magistrate. Because there is nothing unlawful about this
police conduct, Judge Sarokin is forced to concoct another
basis for excluding the evidence obtained.
2. The notion that signing an alias is wholly inconsistent
with a voluntary waiver is absurd. Rodriguez may simply have
been trying to conceal his identity.
3. Judge Sarokin's ``but see'' citation to controlling
Third Circuit precedent is stunning. Does he not regard
himself as bound by circuit precedent?
At this hearing, Judge Sarokin claimed that the Third
Circuit had held only that the use of a false name is
``certainly not dispositive'' but could well be relevant.
[91:15] Such a claim is contrary to the reading of that
precedent made by Judge Sarokin himself in Rodriguez. It also
finds no support in the Third Circuit case.
Judge Sarokin further stated, ``I don't take Third Circuit
precedent, set it forth and say, okay, now I am not going to
follow it. I just don't operate that way.'' [115:14-16] There
is no question that Judge Sarokin's defiance of precedent is
typically less overt. But his unusual candor in Rodriquez
might well reflect the fact that the opinion was unpublished.
4. That Rodriguez told the magistrate that he wanted a
lawyer for assistance at trial is not at all inconsistent
with his agreeing to speak with an FBI agent in the absence
of counsel.
5. How these two factors could override Judge Sarokin's
express finding that Rodriguez read the form and was aware of
his rights is baffling.
v
(Vulcan Pioneers, Inc. v. New Jersey Dep't of Civil Services, 588 F.
Supp. 716 (D.N.J. 1984), vacated, 588 F. Supp. 732 (D.N.J. 1984))
In 1980, some New Jersey cities entered into a civil rights
consent decree regarding the hiring and promotion of
firefighters. The decree set numerical hiring ``goals,'' or
quotas, for racial and ethnic minorities. A few years later,
Newark, faced with a fiscal crisis, threatened to lay off
firefighters. Both nonminority and minority firefighters went
back to court to protect their respective interests. The
union sought to have seniority honored, as required by state
law. The minority firefighters sought to have the seniority
system disregarded in favor of preserving the affirmative
action quotas.
In May 1984, when a ruling by the Supreme Court in
Firefighters v. Stotts on this very issue was known to be
imminent, Judge Sarokin modified the consent decree to
require layoffs on a proportional basis rather than according
to seniority. Thus, more senior nonminority firefighters were
to be laid off in favor of less senior minority firefighters.
In an especially bizarre twist, Judge Sarokin ruled that
his order denying whites their seniority rights constituted
an unconstitutional ``taking'' and that the federal
government--which vigorously opposed Judge Sarokin's
modification of the consent decree--should nonetheless be
required to provide compensation for the taking.
Shortly thereafter, the Supreme Court, in the Stotts case,
effectively reversed Judge Sarokin's decision regarding the
layoffs. In his original opinion, Judge Sarokin had expressed
sympathy for the nonminority firefighters who would have lost
their jobs under his ruling: ``Though not themselves the
perpetrators of the wrongs inflicted upon minorities over the
years, these senior firefighters are being singled out to
suffer the consequences.'' In vacating his own ruling in June
1984, Judge Sarokin changed his tone and attacked the
nonminority firefighters:
``The non-minority firefighters and the unions who
represent them resisted layoffs in this matter on the ground
that they were blameless and innocent of any wrongdoing. But,
in reality, they know better. If they have not directly
caused the discrimination to occur, many certainly have
condoned it by their acquiescence, their indifference, their
attitudes and prejudices, and even their humor.'' 588 F.Supp.
at 734.
VI
Judge Sarokin--who describes himself as a ``flaming
liberal'' as a judge\2\--aggressively displays his sentiments
and ideology on the sleeve of his judicial robe, especially
in the prologues of his opinions. In his own words:
``People have said to me that my opinions read more like
editorials or essays than traditional opinions. I have
not yet decided whether that is praise or criticism.''
Comment, ``Authority in the Dock,'' 69 Boston U.L. Rev.
477 (1989).
Here is a sample of Judge Sarokin's sentiments (in addition
to those portions of his cases quoted in previous parts of
this memorandum):
(Kreimer v. Bureau of Police for Town of Morristown, 765 F. Supp. 181,
182-183 (D.N.J. 1991), rev'd 958 F.2d 1242 (3rd Cir. 1992)):
``The danger in excluding anyone from a public building
because their appearance or hygiene is obnoxious to others is
self-evident. The danger becomes insidious if the conditions
complained of are borne of poverty * * *.
``[O]ne person's hay-fever is another person's ambrosia;
jeans with holds represent inappropriate dress to some and
high fashion to others * * *.
``The greatness of our country lies in tolerating speech
with which we do not agree; that some toleration must extend
to people, particularly where the cause of revulsion may be
of our own making. If we wish to shield our eyes and noses
from the homeless, we should revoke their condition, not
their library cards.''
Comments
1. Given the ideological bias manifest in this prologue, it
is not surprising that Judge Sarokin proceeded to steamroller
or ignore Supreme Court precedent in ruling that the library
policy violated numerous First Amendment doctrines,
substantive due process, and equal protection. (See Part I
for fuller discussion, including Third Circuit reversal.)
Judge Sarokin now asserts that his opinion had nothing to do
with the fact that Kreimer was homeless. But it is clear from
the prologue that this is what motivated Judge Sarokin's
lawless ruling.
2. How is the danger of excluding someone based on hygiene
``self-evident''? Isn't that just Judge Sarokin's way of
skirting the fact that he can't establish his key premise?
3. To note that different people have different standards
of taste is not to establish that a community lacks the power
to set minimal standards.
4. Why is it presumed that ``the cause of revulsion''--
Kreimer's offensive odor and disruptive behavior--``may be of
our own making''? In fact, Kreimer squandered a large
inheritance, turned down job offers, and refused to live in a
shelter.
5. Why must we end hopelessness before we can maintain
standards of hygiene and behavior in libraries? How can this
be reconciled with Judge Sarokin's token disclaimer that
``[l]ibraries cannot and should not be transformed into
hotels or kitchens, even for the needy''?
(Galioto v. Department of Treasury, 602 F. Supp. 682 (D.N.J. 1985)):
``In a society which persists and insists in permitting its
citizens to own and possess weapons, it becomes necessary to
determine who may and who may not acquire them. At issue in
this matter is a statute reminiscent of the Dark Ages * * *.
To impose a perpetual and permanent [gun] ban against anyone
who has ever been committed for mental illness, no matter how
ancient the commitment or how complete the cure, is to
elevate superstition over science.''
Comment
Here's a liberal ``two-fer'': first disparaging the
(politically conservative) right to own guns; then overriding
the lines drawn by the legislature.
(City of Jersey City v. Hodel, 714 F. Supp. 126 (D.N.J. 1989)):
``The issue has been squarely presented: Should a large
portion of this park, built in the shadow of the Statue of
Liberty, be devoted to mooring the boats of an affluent few
or be preserved for the enjoyment of the huddled masses?''
Comment
In fact, neither this issue nor any legal issue was
squarely presented: despite his rhetorical flourish, Judge
Sarokin dismissed this case as not ripe.
(Sternberger v. Heckler, No. 84-553 (Oct. 29, 1984)):
``This court has already concluded that the Department of
Health and Human Services has no heart, but it appears that
its brain is going as well.''
(Plaintiffs' lawyers v. defense lawyers (Speech, ABA, Nov./Dec. 1989)):
``For those of you who represent plaintiffs in toxic tort
matters, in addition to making money, I suggest to you that
you are performing a vital and significant function. Not only
are you seeking and obtaining compensation for those persons
who have been injured by our technological society, but,
equally, if not more importantly, you have created an
awareness in the public that was nonexistent before. * * *.
As to those of you who defend these cases, it is a
little more difficult to take the high ground; but, there
is a risk that frivolous and unsupported claims not only
jeopardize the economy or segments of it, but discourage
research and development of new products. They also raise
costs to the consumer. Therefore, although your efforts
may not be viewed as heroic as those of the plaintiff's
bar, you likewise serve a vital function in making certain
that those companies who are entitled to a defense receive
it, and that the frivolous and ridiculous claims are
vigorously defended.''
Comments
Judge Sarokin exposes his clear bias that plaintiff's
lawyers are ``heroic'' and that toxic tort claims are
generally meritorious. What does this do to the appearance of
impartiality in a particular case?
At his hearing, Judge Sarokin stated that he thought that
his statement ``was about as moderate and down-the-middle
statement as anybody could make.'' [110:4-6] That Judge
Sarokin, on reflection, still believes that a statement that
plaintiff's lawyers are more ``heroic'' and occupy the moral
``high ground'' is ``down-the-middle'' illustrates the
problem.
The litigation explosion (Speech, ABA, Nov./Dec. 1989):
``I think that the litigation explosion is a good thing.
First of all, it should indicate to all of us that despite
the constant criticism of the judicial system, that the
people still believe in it, and it is the last place to which
they can turn to seek a fair adjudication of their rights and
claims. To a large extent the people have lost confidence in
the order branches and look to the courts as their last and
final hope.''
Comments
Does buying a lottery ticket reflect more one's faith in
the lottery system or one's desire to get rich without doing
any work? Is Judge Sarokin oblivious to the fact that
judicial activism has weakened or emasculated the other
branches and thereby contributed to the loss of confidence
that people have in them?
footnotes
\1\According to various new accounts, Kreimer squandered a
$340,000 inheritance, turned down job offers, and refused to
live in a shelter.
\2\In a May 16, 1994, speech to the Federalist Society, Judge
Sarokin described his reaction to the New York police
commissioner's ``crackdown on the squeegee people'': ``So as
a citizen, I applaud the commissioner and his recognition
that permitting this type of activity sets the tone of our
cities and affects the fabric of our daily lives. But the
judge in me, the flame in me, (as in flaming liberal,) says
hold on a minute.''
____________________