Judges and Judiciary
Aug. 15, 2002
Worth Waiting For
PASADENA - Judge Richard Paez, of the 9th U.S. Circuit Court of Appeals, has been called a lot of things. But the most surprising came from a U.S. senator who, during a contentious four-year confirmation battle, stood on the floor of the Senate and denounced Paez as "anti-Christian."
Richard A. Paez
Judge
9th U.S. Circuit Court of Appeals
Career Highlights: Appointed to 9th Circuit by President Clinton, March 9, 2000; U.S. District Judge, 1994-2000; judge, Los Angeles Municipal Court, 1981-94; director of litigation, Legal Aid Foundation of Los Angeles, 1976-81; staff attorney, Western Center on Law and Poverty, 1974-76; staff attorney, California Rural Legal Assistance, 1972-74.
Law School: Boalt Hall, 1972.
Age: 55
But the most surprising came from a U.S. senator who, during a contentious four-year confirmation battle, stood on the floor of the Senate and denounced Paez as "anti-Christian."
Recalling the incident, Paez, who was raised a Mormon and endured teasing as a child for his religion, said the senator was reacting to something Paez did as a municipal court judge nearly 15 years earlier.
While on the municipal court in Los Angeles, Paez repeatedly admonished anti-abortion crusader Randall Terry and other members of Operation Rescue not to display Bibles on the defense table in front of jurors during their trespassing trial. He finally threatened to confiscate them if the group persisted.
"I told them I would take them away if they continued," he said. "The senator called me anti-Christian. It was ridiculous."
Paez, who sits in the court's Pasadena branch, has the dubious distinction of having waited longer to get confirmed by the Senate than any other judge in U.S. history - four years and two months. He was nominated by President Clinton on Jan. 25, 1996, but was not sworn in until March 9, 2000. He also had to be nominated three times by Clinton and was actually approved by the Senate Judiciary Committee three times, in 1996, 1998 and 1999, before the full Senate finally acted, pushed along by some last-minute maneuvering by Sen. Barbara Boxer, D-Calif.
Paez has a framed copy of the final Senate vote tally, 59-39, on the wall of his chambers, a gift from Boxer.
"Senate leaders were not sympathetic to Clinton nominees, and some paid a higher price than others. The Republicans seemed to do anything to delay, defeat or get nominees to drop out," he said recently. "I'm not sure why it was important. The Clinton judges seem more moderate. But there will be continuing battles over nominees," he predicted.
One former law clerk found the entire process disturbing.
"I know him to be an honest, committed jurist," said Tamara Lange, who clerked for Paez from 1996 to 1998 and now works as an American Civil Liberties Union attorney in New York. "To see him maligned professionally when he couldn't defend himself, I found very unfair. I understand how politics work, but it was really disturbing to me to watch someone, who I know is not the kind of person they were making him out to be, treated that way."
Despite the Republican opposition and criticism of him as an "activist" judge by opponents, his background defies traditional labels. The first Hispanic member of the federal bench in Los Angeles, he went to Brigham Young University and is a former surfer from Huntington Beach.
"I don't fit the mold," he said. "But that has helped shape my views."
"I think his background and training defy stereotypes," said Jose Sanchez, one of Paez's first law clerks as a federal district judge in 1994.
"His initial group of law clerks were people who had practiced law for two years. That is very unusual," said Sanchez, now a trial attorney with the Securities and Exchange Commission in Los Angeles. Generally, law clerks are hired out of law school.
In addition, he said, they were all litigators.
Paez spent his early career as a public interest lawyer for California Rural Legal Assistance in Delano, then as a staff attorney at the Western Center on Law and Poverty, and later became director of litigation for Legal Aid Foundation of Los Angeles.
In 1981, Gov. Jerry Brown named him to the municipal court bench in Los Angeles. The state's shift to Republican governors after Brown's tenure left Paez stranded in that job for 13 years. He became presiding judge in 1988.
In 1994, Clinton tapped him for a spot as federal district judge and later elevated him to the 9th Circuit.
Paez came out of his years of training on the municipal court "fully believing that everyone, from big corporations to individuals or pro pers, should have their day in court," Sanchez said. "He strives to be fair and allow everyone to make all the arguments they need to make," something especially difficult on crowded dockets, he said.
He worked the same way in chambers. Paez solicited the opinions of court deputies, his secretary and law clerks when he set up his chambers to find the most efficient way to do things, according to Sanchez. "It was one of the best experiences I ever had," he said.
His opinions since joining the 9th Circuit just over two years ago show him voting most frequently and quietly with the liberal wing of the circuit.
Elisa Fernandez, another law clerk who is now a federal prosecutor in Los Angeles, said, "He doesn't seek out the limelight and never has. He took it as part of the job, something beyond his control."
She said he was willing to make tough decisions in the glare of public spotlight. She cited a patent case that was getting a lot of attention while many cases with similar issues were piling up waiting for a ruling from the 2nd Circuit in New York. Paez thought the litigants were entitled to a decision immediately.
"Everyone was waiting to see what happened. He said we may get reversed, but we have to do it. He pored through arcane law and ended up with a ruling very close to the circuit decision," she said.
That was not his toughest case.
The soft-spoken and easy-going jurist has landed in the middle of more controversial cases than many judges see in a lifetime. In August 1999, while his nomination was pending and Clinton was under political assault, Paez presided over the "Chinagate" case against John Huang and a related case against Maria Hsia. Both were linked to Democratic Party fund-raising scandals.
Charges were dropped against Hsia after one jury deadlocked. In Huang's case, Rep. Dan Burton, R-Ind., wanted Paez to hold off sentencing until Huang testified before Congress. Burton wanted to question Huang, a former Commerce Department official who raised $3.4 million for Democrats, about alleged improprieties.
Paez waited only long enough to get a sentencing report after the government's plea deal with Huang and then sentenced him to one year of probation, community service and a $10,000 fine.
"There was no reason to delay," Paez said. "I have had trust placed in me as a judge. I was appointed to carry out my job without the influence of outside forces."
Paez also drew the case against Unocal Corp., by villagers of Myanmar, formerly Burma, who accused the oil company of complicity with the government in torture, rape and slave labor in the construction of an oil pipeline. The case was among the earliest efforts to use the 200-year-old Alien Tort Claims Act to hold U.S. companies liable for alleged injuries overseas, Doe v. Unocal Corp. 963 F.Supp. 880 (1997).
Paez allowed plaintiffs to proceed and put their claims to the test.
His interpretation of a new and growing area of international torts in 1997 set out the best parameter at the time, according to the counsel for the International Labor Rights Fund, Terry Collingsworth.
In another case, Paez forced defense lawyers for white supremacist Buford O. Furrow to disclose whether they planned an insanity defense and to supply prosecutors with the names of expert witnesses prior to trial. Furrow was accused in the shootings at a Southern California Jewish community center and of killing a postal carrier.
He also barred enforcement of a 1997 Los Angeles city ordinance targeted at panhandlers that banned "aggressive solicitation." The ruling later was upheld by the appeals court.
In 1999, he granted gun show operators an injunction against a Los Angeles County ordinance that banned gun and ammunition sales on county property. The ordinance was later upheld by the California Supreme Court after the 9th Circuit asked the state to review issues of state law that the case presented.
Once on the circuit court, Paez found that California's three-strikes sentencing law amounted to unconstitutional cruel and unusual punishment in those cases where a life term is imposed even when the third strike is a petty offense. Andrade v. Attorney General, 270 F.3d 743 (2001). Leandro Andrade was sentenced to 50 years to life for shoplifting nine videotapes. Although Andrade had seven prior burglary convictions, he had no convictions for violent crime.
"The Eighth Amendment does not permit the application of a law which results in a sentence grossly disproportionate to the crime," Paez wrote.
The U.S. Supreme Court has agreed to review the decision and plans to hear it in November, in what is likely to be a major pronouncement on three-strikes legislation.
Earlier this month, Paez led a narrow 6-5 majority to overturn the 20-year-old death sentence of William Payton because the prosecutor wrongly told jurors they could not consider his religious conversion as a mitigating factor and the trial judge failed to correct the mistake. Payton v. Woodford, 2002 DJDAR 8825.
Paez also provided the crucial swing vote in a splintered 6-5 decision last year when the court held that a 30-minute delay in a chase undermined the police's argument that they were in "hot pursuit" of a fugitive. That, in turn, invalidated a warrantless search that uncovered a neighbor's marijuana-filled shed.
In that case, a police officer chasing one man on a misdemeanor charge waited for reinforcements, then entered a locked yard only to discover 770 marijuana plants owned by someone officers were not chasing. U.S. v. Johnson, 256 F.3d 895 (2001).
Paez wrote separately, agreeing with the majority that the 30-minute delay invalidated the search, but he also agreed partially with the dissent regarding the level of review on the question of the zone of privacy created by a yard fence.
"His lone-wolf opinion demonstrated to me that he is an independent thinker and not someone to go along with the crowd," said Michael Filipovic, the Seattle defense attorney in the Johnson case.
He called Paez "thoughtful," someone who did not seem to have an agenda during arguments.
In tough cases where following the law might do an injustice, Paez said, "I am bound to follow precedent. If it is a result I disagree with, my view on that just doesn't count."
He counts among his heroes his mother and father, "who helped me and supported me," and Bobby Kennedy: "He was just caring and thoughtful and an inspiration."
He also added Boxer as another hero for getting his nomination to the Senate floor for a vote. Boxer put a hold on a nomination by Sen. Trent Lott, R-Miss., for the Tennessee Valley Authority. Lott really wanted the nominee, the mayor of Tupelo, to get through, so he agreed to let Paez go to the floor for a vote, Paez said.
Lange described him as a judge who thoroughly reads the papers filed by the district court attorneys. "He works really hard. His schedule was driven by his workload and the cases and amount of reading, rather than the hours he wanted to spend in the office," she said.
To relax, Paez participates in activities with his children and does some traveling, he said. But Lange said he was once a pretty good surfer.
"I bug him about how he ought to get back to surfing more. He works too much. That's one of the amusing things about him. You'd never guess he was a surfer."
Recent cases handled by Paez and the lawyers involved:
Andrade v. Attorney General, 270 F.3d 743 (2001)
State: Deputy Attorney General Douglas P. Danzig, San Diego
Defense: Erwin Chemerinsky, Los Angeles
Knevelbaard Dairies v. Kraft Foods, 232 F.3d 979 (2001)
Plaintiff: James R. Noblin, Los Angeles
Defense: James M. Harris, Los Angeles
Great Western Shows v. Los Angeles County, CV99-09661 RAP
Plaintiff: C.D. Michel, San Pedro
Defendant: Lawrence Hafetz, Los Angeles
Doe v. Unocal, 963 F. Supp. 880 (1997)
Plaintiff: Judith Brown Chomsky, Elkins Park, Penn.
Defendant: Daniel Collins, Los Angeles
U.S. v. Johnson, 256 F.3d 895 (2001)
Prosecution: Asst. U.S. Attorney Bruce F. Miyake, Seattle
Defendant: Federal Public Defender Michael Filipovic, Seattle
Pamela Mac Lean
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