[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.''
---------------------------------------------------------------------------
     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.''

                          ____________________