[Congressional Record Volume 140, Number 144 (Thursday, October 6, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: October 6, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
NOMINATION OF H. LEE SAROKIN
Mr. LOTT. Mr. President, in my statement on October 4 concerning the
nomination of Judge H. Lee Sarokin, through inadvertence, part 2 of an
analysis of Judge Sarokin's record by Thomas L. Jipping failed to be
printed in the Record. I ask unanimous consent that the omitted portion
be printed at this point in the Record and that the bound volume be
corrected to reflect the continuous printing of part 1 and part 2.
There being no objection, the analysis was ordered to be printed in
the Record, as follows:
[From Coalitions for America, Aug. 20, 1994]
Flunking the Credibility Test, Part 2: Comparing the Testimony to the
Truth
(By Thomas L. Jipping)\1\
President Clinton has nominated H. Lee Sarokin, currently a
U.S. District Judge in New Jersey, to the U.S. Court of
Appeals for the Third Circuit (NJ, PA, DE, VI). The Senate
Judiciary Committee conducted a hearing on the nomination on
August 3, 1994. Senators fulfilling their constitutional role
of advice and consent look at a nominee's substantive record
and testimony at his hearing. Coalitions for America has
already provided extensive analysis of Judge Sarokin's
record;\2\ this memorandum examines his hearing testimony.
Judge Sarokin was, at best, disingenuous and, at worst,
dishonest about some of the very controversial parts of his
record. His testimony painted a picture of a judge who
consistently respects precedent and maintains his proper role
as a judge no matter what his personal views, a judge whose
decisions are rarely reversed on appeal, and a judge with
mainstream views on important issues. Comparing the testimony
to the truth shows that this picture is false.
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Footnotes at end of article.
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i. inventing new rights
A. The testimony
In the so-called ``library case,'' arguably Judge Sarokin's
most infamous decision, he struck down a library's rules for
the behavior and hygiene of patrons. On the one hand, it is
just one of many activist decisions that was reversed on
appeal. On the other hand, however, it is a striking example
of how Judge Sarokin attempts to advance social and personal
causes in the guise of judicial decisionmaking. It is also a
clear example of how Judge Sarokin misled the Judiciary
Committee and, therefore the Senate, about the very
controversial nature of his record.
In Kreimer v. Bureau of Police for Town of Morristown,\3\
Judge Sarokin effectively created a constitutional right not
to be discriminated against on the basis of behavior or
hygiene. He struck down regulations adopted by the Morristown
library board regarding behavior and hygiene standards for
library patrons. The board had adopted those regulations
after repeated, yet unsuccessful, attempts to handle a
continually disruptive and obnoxious patron. At his August 3
hearing, and in other settings, Judge Sarokin maintained that
``[t]here were two issues that were presented to me,''
namely, a First Amendment issue and a vagueness/overbreadth
issue. He claimed that ``the only issue with which the Third
Circuit disagreed was whether or not the regulations were
vague and over-broad. They did not disagree about the First
Amendment analysis.''
B. The truth
This is simply not true and it is difficult to understand
how Judge Sarokin could so blatantly misrepresent his own
decision and the basis for the Third Circuit's reversal. In
fact, the Third Circuit disagreed with every substantive part
of Judge Sarokin's First Amendment analysis as well as every
other issue. The record is very clear about what Judge
Sarokin decided and what the Third Circuit reversed:
Judge Sarokin held that a library is a ``traditional'' or
``quintessential'' public forum for the expression of
ideas\4\ akin to ``streets and parks''.\5\ The Third Circuit
reversed that decision.\6\
Judge Sarokin held that a library is a full-fledged
``designated public forum.''\7\ The Third Circuit
disagreed.\8\
Judge Sarokin held the library's rules were ``not
reasonable time, place, or manner restrictions.''\9\ The
Third Circuit reversed that decision.\10\
Judge Sarokin held that the library's rules were
unconstitutionally overbroad.\11\ The Third Circuit reversed
that decision.\12\
Judge Sarokin held that the library's rules were
unconstitutionally vague.\13\ The Third Circuit reversed that
decision.\14\
Judge Sarokin held that the library's rules violated the
due process clause of the Fourteenth Amendment.\15\ The Third
Circuit reversed that decision.\16\
Judge Sarokin held that the library's rules violated the
equal protection clause of the Fourteenth Amendment.\17\ The
Third Circuit reversed that decision.\18\
Judge Sarokin held that the library's rules violated the
New Jersey Constitution.\19\ The Third Circuit reversed that
decision.\20\
Anyone reading these decisions, each a mater of public
record, will see that at least these eight issues were
addressed in the Kreimer case. The appeals court reversed
Judge Sarokin on every one of them. Given the clarity of the
record, his statement to the Judiciary Committee that there
were only ``two issues'' involved and that the appeals
court disagreed on only one could only have been an
attempt to cover up the strikingly activist and very
controversial nature of his record. This lack of candor is
cause for serious concern about this nominee and his
fitness to serve on the second highest court in the land.
The Third Circuit not only reversed Judge Sarokin on all of
these issues, it also disagreed with several of his
interpretations of important precedents. For example, citing
a Supreme Court decision, Judge Sarokin insisted that the
Court has ``consistently held that government must limit
time, place, and manner restrictions of a public forum to
prohibitions of activity which actually and materially
interferes with the peaceful and orderly management of the
public space.''\21\ As the appeals court pointed out, this is
not at all what the Court has held.\22\ The case Judge
Sarokin cited involved prohibition of particular symbolic
political speech on the basis of its content; this lies at
the heart of the First Amendment and this type of regulation
would be subject to the strictest judicial scrutiny. In
addition, that case involved the unique setting of public
schools. There is neither a factual nor legal parallel in the
Kreimer case.
Senator Strom Thurmond (R-SC) asked Judge Sarokin if he
believed his ruling on vagueness was faithful to Supreme
Court precedent. The nominee insisted that the Supreme
Court's decision in Brown v. Louisiana,\23\ which he had
cited in his opinion in Kreimer, explicitly held protected by
the First Amendment activity (sitting in silent protest)
which the library's regulation in Kreimer would have
prohibited. As he told the Committee, ``that is why I thought
it was unconstitutional.'' Yet, as Justice Brennan's
concurring opinion in Brown clearly emphasizes, only a three-
Justice plurality took the position that silent protest was
protected under the First Amendment.
Perhaps H. Lee Sarokin, with 25 years of litigation
experience and another 15 years as a U.S. District Judge,
simply misread an important Supreme Court decision (he told
the Committee that Brown was ``the most significant case on
this issue''). If this is the case, he should long ago have
been willing to admit this and correct his mistake. Yet later
in his hearing, after Senator Thurmond had pointed out his
misreading of Brown, Judge Sarokin repeated his error, again
insisting that the opinion of a Supreme Court plurality was
actually the holding of a Supreme Court majority and,
therefore, dictated his decision in Kreimer.
Perhaps Judge Sarokin simply utilized whatever he could to
buttress his preferred result. As this memorandum points out
below, the Third Circuit in other cases has rebuked Judge
Sarokin for deciding cases on the basis of his own
``intuition,''\24\ his ``own views''\25\ and for refusing
to follow binding precedent with which he disagreed.\26\
In a 1984 case, Judge Sarokin even cited the very Third
Circuit precedent that he ignored to reach his preferred
result.\27\ Perhaps in Kreimer he knew what he was doing
after all.
II. Opposition to PreTrial Detention and Mandatory Sentencing
A. The testimony
On March 20, 1987, Judge Sarokin addressed the Mid-Atlantic
Conference of Law Reviews. This speech was published as an
article in the West Virginia Law Review.\28\ He stated that
law journals should analyze various proposals for changes in
the civil and criminal law. He also made very plain his own
opinion about some of those proposals. He stated:
``Look at what is happening in the criminal area. We have
pretrial detention of the accused in direct contradiction of
the presumption of innocence. . . . Mandatory and uniform
sentencing is in the wings depriving judges of the right to
grant mercy.\29\
B. The truth
There is no question about Judge Sarokin's opinion of
pretrial detention, mandatory sentencing, and uniform
sentencing--he opposes each of them. These are very
controversial views. Perhaps understanding this, he responded
at his hearing to a question by Senator Thurmond by insisting
that ``I merely outlined for them a number of issues that I
thought Law Reviews should take up. I certainly did not
suggest to them how they should come out.'' This statement is
simply not true, and one need only read the article to see
this on its face. He made very clear what his opinion on
these matters were. Again, it is very difficult to square
Judge Sarokin's statements to the Judiciary Committee with
the clear public record.
III. Deference to Lower Courts
Senator Joseph Biden (D-DE), Judiciary Committee Chairman,
asked Judge Sarokin some questions about his judicial
philosophy to determine whether the nominee has a sufficient
understanding of his proper role as a judge. At various
times, this role requires a judge to be deferential to lower
courts as well as respectful to higher courts. Senator Biden
asked Judge Sarokin about both areas.
A. The testimony
In certain instances, appellate judges must be deferential
to decisions by lower courts. Because trial judges are
finders of facts in the first instance, appellate judges must
defer to those factual findings unless they are ``clearly
erroneous.'' This means appellate judges cannot simply
substitute their own judgment whenever they wish. Senator
Biden asked Judge Sarokin whether, if appointed to the
appeals court, he could ``accept factual findings by the
lower court.'' Not surprisingly, Judge Sarokin assured the
Committee he would ``certainly'' do this successfully.
B. The truth
Senators need not wait until Judge Sarokin sits on the
appeals court, however, to know the truth about this
important issue. Even in his capacity as a trial judge, Judge
Sarokin has been required to apply the same deferential
standard and has already demonstrated that he cannot do so
successfully. The Federal Magistrate Act states that ``a
magistrate's order is not to be reconsidered unless it is
`clearly erroneous or contrary to law.'''\30\ The U.S.
Supreme Court,\31\ the Federal Rules of Civil Procedure\32\
and the General Rules of Judge Sarokin's own court\33\
require the same standard. Judge Sarokin, therefore, is
presently required to apply to magistrates' decisions the
very same standard that, as an appellate judge, he would
have to apply to district judges' decisions.
He has repeatedly refused to apply this deferential
standard and has instead applied a ``plenary'' standard that
allowed him to substitute his own judgment. In one high-
profile case, the U.S. Court of Appeals reversed Judge
Sarokin for applying the wrong standard and wrote: ``The
`clearly erroneous' standard obviously would have been less
onerous for the defendants than was the district court's
plenary review standard.''\34\ Judge Sarokin ignored the law
precisely so he could be as onerous as possible on the
parties he disfavored.
Several years later, in the very same case, Judge Sarokin
again had to review a magistrate's recommendation. The court
of appeals said it was ``undisputed''\35\ as well as ``clear
and unambiguous''\36\ that the correct standard was
deference; Judge Sarokin could only consider the evidence
that was before the magistrate and could only overturn a
decision that was ``clearly erroneous and contrary to law.''
Instead, he ignored the law, ordered the parties to submit
evidence from a different case that the magistrate had not
even seen, and substituted his own judgment. This was a
sufficiently serious judicial ``usurpation of power''\37\ to
warrant the ``extraordinary'' and ``exceptional'' remedy of a
writ of mandamus reversing this decision. In addition, as
described below, the Third Circuit actually removed Judge
Sarokin as the presiding judge in this case because he could
not maintain an appearance of impartiality.
Judge Sarokin may well say that he will, as an appellate
judge, have no problem applying the deferential ``clearly
erroneous'' standard to lower court findings. His record,
however, shows that he has disregarded this very standard as
a district judge when reviewing magistrate recommendations.
iv. respect for higher courts
A. Supreme Court
1. The testimony
As part of his discussion about judicial philosophy,
Senator Biden also asked Judge Sarokin if, as a court of
appeals judge, he would follow binding precedent. Judge
Sarokin responded that he would be ``clearly bound by any
Supreme Court precedent'' and that he would ``have no trouble
with that'' whether or not he agreed with the particular
precedent.
2. The truth
The truth is that, in some cases, Judge Sarokin has been
more than willing to distort Supreme Court precedent to fit
his jurisprudential needs and, in other cases, quick to
disregard entirely Supreme Court precedent that does not
allow him to achieve his preferred results.
For example, in Kreimer v. Bureau of Police for the Town
of Morristown,\38\ discussed above, Judge Sarokin held that
library rules governing patron behavior and hygiene were
unconstitutional. He cited the Supreme Court's decision in
Brown v. Louisiana\39\ and insisted that the Court there had
held that a silent protest in a library was
``constitutionally protected.''\40\ Yet, as Justice William
Brennan's concurring opinion in Brown emphasized, only a
plurality of the Court believed that the silent protest was
protected.
In Blum v. Witco Chemical Corp.,\41\ three chemists brought
an age discrimination suit against their former employer.
Judge Sarokin awarded them attorney's fees plus a 20%
multiplier. The U.S. Court of Appeals ordered him to
reconsider in light of a recent Supreme Court decision.\42\
He appointed a magistrate who recommended that no multiplier
be awarded, but he granted a 50% multiplier instead. The
appeals court reversed Judge Sarokin and, noting that he had
``offered no explanation why the specific figure of 50
percent was chosen''\43\ and earlier had actually
``rejected plaintiffs' request for a 50 percent
increase,''\44\ severely criticized Judge Sarokin for
imposing his personal views and ignoring relevant
precedent. among the Third Circuit's criticisms were the
following:
[T]he district court, without concealing its disapproval of
both the Supreme Court's decision and ours, proceeded in
accordance with its own views.\45\
We conclude that in at least four respects essential to its
decision, the district court applied the incorrect legal
standard.\46\
It appears that the court proceeded to follow its own view
of the relevant market in ascertaining the availability of
adequate legal representation.\47\
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.\48\
[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.\49\
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.\50\
The court finally rebuked Judge Sarokin by concluding that
``the error with the district court's judgment was 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 contrary precedent.''\51\ This is an unusually harsh
series of rebukes, justified because Judge Sarokin had
rendered an unusually activist series of decisions, openly
expressing his personal distaste for binding precedent and
openly ignoring that precedent.
Similarly, in LeBrun v. Thornburgh,\52\ Judge Sarokin made
clear his personal views of the issues and law involved and
followed those personal views rather than the law. In this
cases, Judge Sarokin held that certain immigration law
provisions violated the equal protection clause of the
Fourteenth Amendment. These provisions (which are no longer
operative) required that in order for children born out of
wedlock to American fathers and foreign mothers to be U.S.
citizens, the father must acknowledge the child before age 21
and the child must live in the United States for a certain
number of years before age 28. Judge Sarokin made clear his
personal objection to the statutory provisions, calling them
``inhumane and unfair'' as well as ``sexist.''\53\ He even
took exception to using the term ``illegitimate'' to describe
children born out of wedlock, calling it ``discriminatory''
and ``archaic.''\54\ The basis for his decision seemed to be
his personal observation that the policy in the statue ``is
wrong.''\55\
In addition to clearly stating his personal moral
objections to this requirement, Judge Sarokin wrote that his
holding ``may be analogized to the `disparate impact'
doctrine under Title VII.''\56\ The Supreme Court has
explicitly held, however, that the equal protection clause
requires showing intentional discrimination; the disparate
impact theory does not apply. Judge Sarokin was simply wrong
as a matter of law to hold otherwise. Yet, in response to a
question by Senator Charles Grassley, however, he insisted
that there was ``ample case law to support that conclusion.''
B. U.S. Court of Appeals
1. The testimony
Later in the hearing, Senator Thurmond asked Judge Sarokin
if, as a district judge, he is presently bound by the U.S.
Court of Appeals for the Third Circuit. Not surprisingly,
Judge Sarokin agreed that he is. Yet just as he has openly
defied Supreme Court precedent and decided cases based on his
own views and own intuition, Judge Sarokin has ignored
binding precedent from the Third Circuit. It is no wonder
that he is the most reversed federal judge in New Jersey.
2. The Truth
In one of the more egregious examples, Judge Sarokin not
only refused to follow binding Third Circuit precedent, he
even cited the very precedent he was ignoring. In U.S. v.
Rodriguez,\57\ a criminal suspect read and signed a waiver of
his Miranda rights. He signed the waiver with a false name.
Judge Sarokin held that, because of this, the waiver was not
voluntary. In doing so, he included the following citation:
``But see United States v. Chapman, 448 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).
Judges or authors use ``but see'' to introduce the citation
of legal authority that may contradict but does not affect
their conclusion. That is, Judge Sarokin thought to reference
this directly contrary Third Circuit precedent, and even to
describe its contrary holding, but did so in such a way as to
indicate his belief that it was of interest but no
consequence for his decision. In response to a question by
Senator Thurmond at his hearing, however, Judge Sarokin
insisted that this decision was ``definitely'' in accord with
Third Circuit precedent.
In response to a question by Senator Hank Brown (R-CO),
Judge Sarokin stated that the Third Circuit had decided in
Chapman that using a false name was not ``dispositive'' on
the question of voluntariness. Yet in Rodriguez, Judge
Sarokin himself described the Third Circuit's decision in
Chapman as holding that using a false name is not even
``relevant'' to that question.
Later in the hearing, Senator Brown read a question
submitted by Senator Orrin Hatch (R-UT) about the same issue.
Judge Sarokin stated that ``I can't imagine that the Third
Circuit's ruling would be that use of an alias was never
relevant in this type of a proceeding.'' Yet this is exactly
the way Judge Sarokin himself described the Third Circuit's
holding in Chapman. Judge Sarokin insisted that ``it would be
inconceivable to me that I found the Third Circuit decision
that said you can't use this as a factor and in the same
sentence I said I am going to.'' Yet in Rodriguez, Judge
Sarokin cited the Third Circuit's decision in Chapman,
described that holding as saying that using a false name is
``not relevant'' to the issue of voluntariness, then held
that the suspect in the case before him had not made a
voluntary waiver because he had signed the waiver with a
false name. The contradiction should be plain for all to see.
V. Ignoring Precedent in Obscenity and Pornography Cases
A. The testimony
In E-Bru, Inc. v. Graves,\58\ Judge Sarokin granted an
injunction blocking the town of Paterson, New Jersey, from
applying its zoning ordinance to an adult bookstore. In his
opinion, Judge Sarokin wrote: ``We must remember that we are
dealing only with words and pictures, the harmful effects of
which, if any, has never been clearly established.''\59\ At
his August 3 hearing, Judge Sarokin responded to questions by
Senator Charles Grassley (R-IA) about this case and insisted
such statements were his way of emphasizing ``that there were
First Amendment implications here that necessitated the
action that I took. It was an effort on my part to try to
explain and justify the legal ruling that I had made.''
B. The truth
Judge Sarokin did not even attempt to explain why evidence
of harm from pornography was at all relevant to his
discussion of the legal issues. He provided no basis for his
conclusory statement that such harm ``has never been clearly
established.'' And he never distinguished, or even cited, the
Supreme Court's rejection of the argument that scientific
data conclusively demonstrating adverse effects is necessary
for communities to regulate pornography and obscenity.\60\
How can it be, then, that his assertion that harm from
``words and pictures'' has not been established was necessary
to ``explain and justify'' his legal ruling? It cannot be. As
in so many other cases, the only explanation is Judge
Sarokin basing his decisions on his personal views and,
further, injecting his personal views directly into his
written opinions.
VI. JUDICIAL TEMPERAMENT
Judge Sarokin presided over a high-profile lawsuit against
several tobacco companies. The plaintiffs sought thousands of
documents and the defendants argued that some of them were
protected by the attorney-client privilege. Judge Sarokin
appointed a special master who concluded that the attorney-
client privilege did apply to some of the documents. He also
appointed a magistrate who concluded that the crime-fraud
exception to the privilege did not apply. Judge Sarokin not
only reversed the magistrate's decision but actually included
portions of the documents in his published opinions. The
Third Circuit reversed him and, based on actions like these
and outrageously biased statements against one of the parties
before Judge Sarokin, actually issued a writ of mandamus
removing him as the presiding judge in the case.
A. Judge Sarokin's testimony
At his August 3 hearing, responding to Senator Brown, Judge
Sarokin admitted that disclosing these documents ``probably
was an error'' and said that ``probably I should have avoided
it.'' Yet he still attempted to justify this extraordinary
breach of judicial duty by saying that ``there was not some
wholesale disclosure.'' This is another example of how Judge
Sarokin's personal biases or views drive his jurisprudence.
Those biases lead him to make decisions which, like this one,
are often reversed on appeal. Those biases also prompt him to
make statements or take actions which are completely
unnecessary to decide the legal issues before him, but
instead serve to pursue his own personal agenda.
B. The truth
The Supreme Court has said that ``any tribunal permitted by
law to try cases and controversies not only must be unbiased
but also must avoid even the appearance of bias.''\61\ The
Third Circuit removed Judge Sarokin as the presiding judge in
this case after concluding that ``it is impossible for us to
vindicate the requirement of appearance of impartiality in
view of the statements made in the district court's
prologue to its opinion.''\62\ Those statements were
included in a diatribe against all big business, claiming
they place ``money over morality'' and ``put the buying
public at risk solely for the purpose of making
profits.''\63\ He called the very companies who were
parties before him in that case ``the king of concealment
and disinformation.''\64\ While the Third Circuit had
refused a request earlier in the litigation to remove
Judge Sarokin because of his obvious bias,\65\ this time
the court had had enough. Even the liberal New York Times
agreed with removing Judge Sarokin, concluding that he had
``flunked an important test of credibility.''\66\
conclusion
Judge H. Lee Sarokin has a very activist and very
controversial record, a record he tried to cover up or run
away from at his hearing before the Judiciary Committee.
He claimed, in response to a question by Senator William
Cohen, that his record on appeal is ``maybe a little bit
better'' than ``anyone else on the [district] court.'' Yet
the New Jersey Law Journal concluded that ``Sarokin may be
the most reversed federal judge in New Jersey when it comes
to major cases.''\67\
These are just some of the obvious and serious
discrepancies between Judge Sarokin's testimony at his
hearing and the record he has developed during his years as a
federal judge. It is perhaps understandable that he would
want to downplay his very liberal, very activist, and very
controversial record. But just as he had to be removed from
an important case because he could no longer even maintain an
appearance of impartiality, he should be prevented from
assuming a seat on the U.S. Court of Appeals because he
cannot maintain the appearance of candor or restraint.
footnotes
\1\Legal Affairs Analyst, Coalitions for America.
\2\See ``Flunking the Credibility Test: Judicial Temperament
and Judicial Philosophy,'' report dated July 20, 1994; two
Nomination Memoranda dated August 18, 1994; Nomination
Memoranda dated August 4 and July 25, 1994.
\3\765 F.Supp. 181 (D.N.J. 1991)
\4\Kreimer, 765 F.Supp. at 187.
\5\Id. at 186, quoting Perry Education Assn. v. Perry Local
Educators' Assn, 460 U.S. 37,45 (1983).
\6\Kreimer, 958 F.2d at 1256.
\7\Kreimer, 765 F.Supp. at 187.
\8\Kreimer, 958 F.2d at 187.
\9\Kreimer, 765 F.Supp. at 189.
\10\Kreimer, 958 F.2d. at 1262-64.
\11\Kreimer, 765 F.Supp. at 190.
\12\Kreimer, 958 F.2d at 1265.
\13\Kreimer, 765 F.Supp. at 193.
\14\Kreimer, 958 F.2d at 1267-68.
\15\Kreimer, 765 F.Supp. at 195.
\16\Kreimer, 958 F.2d at 1269.
\17\Kreimer, 765 F.Supp. at 196.
\18\Kreimer, 958 F.2d. at 1269 n.36.
\19\Kreimer, 765 F.Supp. at 197.
\20\Kreimer, 958 F.2d. at 1270.
\21\Kreimer, 765 F.Supp. at 188, citing Tinker v. Des Moines
Indepenent Community School District, 393 U.S. 503 (1969).
\22\Kreimer, 958 F.2d 1242, 1263 n.25.
\23\383 U.S. 131 (1966).
\24\See, e.g., Blum v. Witco Chemical Corp., 888 F.2d 975,983
(3d Cir. 1989).
\25\Id. at 977.
\26\Id. at 982.
\27\See United States v. Rodriguez, Crim. No. 84-18 (D.N.J.
1984).
\28\Sarokin, ``Beware the Solutions!,'' 90 West Virginia Law
Review 1003 (1988).
\29\Id. at 1005.
\30\Cipollone v. Liggett Group, Inc., 785 F.2d 1108,1113 (3d
Cir. 1986), citing 28 U.S.C. Sec. 636(b)(1)(A).
\31\See United States v. Raddatz, 447 U.S. 667,673 (1980).
\32\See Fed.R.Civ.P. 72(a).
\33\See General Rule 40D(4) of the U.S. District Court for
the District of New Jersey.
\34\Cipollone, 785 F.2d at 1120.
\35\Haines v. Liggett Group, Inc., 975 F.2d 81,92 (3d Cir.
1992).
\36\Id. at 91.
\37\See Will v. United States, 389 U.S. 90,95 (1967).
\38\765 F.Supp. 181 (D.N.J. 1991), rev'd, 958 F.2d 1242 (3d
Cir. 1992).
\39\383 U.S. 131 (1966).
\40\Kreimer, 765 F.Supp. at 191.
\41\702 F.Supp. 493 (D.N.J. 1988), rev'd, 888 F.2d 975 (3d
Cir. 1989).
\42\That decision was Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 483 U.S. 711 (1987).
\43\Blum v. Witco Chemical Corp., 888 F.2d 975,979 (3d Cir.
1989).
\44\Id. at 980.
\45\Id. at 977.
\46\Id. at 981.
\47\Id. at 982.
\48\Id.
\49\Id.
\50\Id. at 983.
\51\Id. at 977.
\52\777 F.Supp. 1204 (D.N.J. 1991).
\53\Id. at 1206.
\54\Id. at 1213.
\55\Id. at 1212.
\56\Id. at 1213 n.6.
\57\Crim. No. 84-18 (D.N.J. 1984).
\58\566 F.Supp. 1476 (D.N.J. 1983).
\59\Id. at 1478.
\60\See Paris Adult Theatre I v. Slaton, 413 U.S. 49,58,60
(1973).
\61\Commonwealth Coatings Corp. v. Continental Casualty Co.,
393 U.S. 145 (1968).
\62\Haines v. Liggett Group, Inc., 975 F.2d 81,98 (3d Cir.
1992).
\63\Haines v. Liggett Group, Inc., 140 F.R.D. 681,683 (D.N.J.
1992).
\64\Id.
\65\See Cipollone v. Liggett Group, Inc., 822 F.2d 335 (3d
Cir. 1987).
\66\Editorial, New York Times, September 10, 1992, at A22.
\67\Schroth, ``Sarokin Off Tobacco Case After Circuit's Rare
Move,'' New Jersey Law Journal, September 14, 1992.
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