Judges and Judiciary
Aug. 1, 2002
Grandiloquent Opinions
SAN FRANCISCO - Judge Ferdinand F. Fernandez jealously guards his own privacy, which may explain, in part, why the otherwise conservative 9th U.S. Circuit Court of Appeals jurist regularly joins the court's liberal wing on issues of privacy and Fourth Amendment searches.
But search and seizure cases are the only ones that prompt him to break ranks with his conservative colleagues.
The most recent example of his sympathy for privacy protection came in the case of a Napa County police officer's warrantless search of the home of a man on probation for a drug conviction. The man was suspected of plotting to firebomb Pacific Gas & Electric Co. property.
Fernandez wrote in a 2000 opinion that although Mark J. Knights was on probation, which required him to submit to searches at any time, for the search to be legal it had to be for the purpose of probation supervision and not to investigate suspicions of an unrelated crime.
"As we enter the 21st century, citizens find the very notion of privacy under almost relentless assault," Fernandez wrote. He cited the proliferation of drug testing and the sale of driver's license information and bank account data.
The Supreme Court snapped up the case and overturned Fernandez in 2001, holding that, if an officer had a reasonable suspicion of a crime, the warrantless search was permitted. U.S. v. Knights, 534 U.S. 112.
Throwing out warrantless probation searches in California was a "fairly liberal decision," said Sandy Svetcov, with Milberg, Weiss, Bershad, Hynes & Lerach in San Francisco.
Another example of Fernandez's feelings about the Fourth Amendment came in a case in which he suppressed evidence because police violated the "knock and announce" rule. U.S. v. Ramirez, 91 F.3d 1297 (1996).
"The flame of our Fourth Amendment liberties is bright and strong. It has been tended by lovers of liberty for over two centuries. Still, it is just a flame, and it will be quickly quenched if it is not protected. Should that occur, a tenebrific atmosphere would envelop our liberties and our homes. That must not happen," Fernandez wrote.
Fernandez declined requests for interviews or a photograph for this story and actively discouraged former law clerks from discussing his work.
One former clerk, Jean Rosenbluth agreed to a limited discussion because she said it was important to describe his work.
"He is really everything you could want a judge to be. He reads every brief in every case. He is extremely hardworking," she said.
"Taxpayers couldn't get more for their money," said Rosenbluth, a former federal prosecutor in Los Angeles and currently a law professor at USC.
She declined to discuss anything personal about Fernandez or his judicial philosophy. She served as his clerk in 1994-95.
The publicity-shy judge probably got far more national media attention than he wanted last month when he was the lone dissent in the case declaring teacher-led recitations of the Pledge of Allegiance to be an unconstitutional violation of the Constitution's Establishment Clause. Newdow v. U.S. Congress, 2002 DJDAR 7229.
Fernandez wrote that the religious clauses in the First Amendment were "not designed to drive religious expression out of public thought; they were written to avoid discrimination," and he said the use of the phrase "under God" has a "de minimis" effect on the free exercise of religion.
He broke with his more moderate Republican colleague, Judge Alfred Goodwin, but his dissent in Newdow may ultimately hold sway. Fernandez pointed out that a majority of the current U.S. Supreme Court justices have mentioned in dicta that they see no problem with the reference to a deity in the pledge.
In another case testing the collision of religion and government, Fernandez dissented from an 11-judge en banc decision that Tucson was right to refuse to underwrite a Christian group's use of a city park for a National Day of Prayer.
The religious group argued that it was only asking for what many other civic groups received, namely reimbursement of costs for use of city equipment. Fernandez dissented, arguing that the group should be reimbursed like any other civil organization. Gentala v. City of Tucson, 275 F.3d 1160 (2002).
"As I see it, this case is not about speech, or viewpoints of speakers, at all," Fernandez wrote. "It is solely about outright discrimination against religious organizations. As such, it does violate the First Amendment, but not the clause which precludes government from 'abridging the freedom of speech.'"
Over the years Fernandez has gained fame for a peculiarity of his writing style.
"He puts jawbreakers into his opinions," said Svetcov. "He is famous for inserting words that no one understands without using a dictionary."
"If he writes a case which doesn't require me to get up and go to a dictionary, he is off his form," said Jerrold Ladar, a criminal defense attorney and former federal prosecutor in San Francisco, who has been compiling a Fernandez vocabulary list for a dozen years.
Archaic or obscure words such as crapulent, aduncous, cockatrice, desideratum and pellucid have found their way into opinions.
"It is not such a valuable trait," said Ladar, who said plain language is more important to lawyers.
Another lawyer was far more critical of the practice.
"His opinions are very verbose. It reflects pedantry. The use of the words are pompous," said the civil attorney, who appears in the 9th Circuit and asked not to be identified. "He is very smart, but he shows off. The proof is in his opinions. They are pretentious and pedantic."
"Judges should be plainspoken," the attorney said, adding that the use of ornate language is "especially inappropriate" in death penalty cases.
"He just seems intentionally unwilling to speak in a common voice, and that leads people to question his common sense," he said.
But even with this criticism, he joined the chorus of appellate attorneys who praised Fernandez's intelligence. "He is a very intelligent man. His opinions are well reasoned," his critic said.
Miriam Krinsky, former head of the appellate section for the U.S. attorney's office in Los Angeles and the new president of the Los Angles County Bar Association, described Fernandez as "always incredibly well prepared and relatively unassuming. He is one of those judges that come forward with questions if it is something truly on his mind, rather than engaging in a dialogue during argument."
"He is as quick and bright as anyone you will find in the circuit," she said. "He is not harsh on advocates, but he does have high expectations."
Krinsky was more sanguine about the judge's use of complex vocabulary. "I think it is his own type of humor he is injecting into opinions. He is one of the more interesting reads, and I'm not sure it is completely intentional. He is a step ahead of the world in terms of intellect," she said.
Fernandez, who served as a federal trial judge in Los Angeles for four years, was nominated to the 9th Circuit by President Reagan in 1988 after a heated political fight over the president's failed nomination of conservative San Diego law professor Bernard H. Siegan.
Speculation was that Reagan's nomination of Fernandez, whose family emigrated from Spain, was an attempt to use his Hispanic heritage to break the partisan stalemate that had stalled 24 other judicial nominees that year.
Fernandez was sponsored by Republican Sen. Pete Wilson before Wilson's election as governor.
Ultimately, Fernandez did not make the cut that year, but he was nominated and confirmed the next year, with George H.W. Bush in the White House.
Fernandez was born in 1937 and raised in Upland. He graduated from USC, where he studied electrical engineering. He received a law degree there in 1962 and went on Harvard Law School for a master's of laws in 1963.
"Engineers show up in law schools all the time and they drive you nutty with the detail of their work," said Ladar. "They want everything to fit together and end with a logical conclusion. That is the sort of attitude he has."
His engineering background probably helped in his biggest case on the trial bench. He handled the complex federal fraud prosecution of General Dynamics Corp. and four of its executives, including former NASA administrator James Beggs. The Justice Department eventually dropped the case and apologized to Beggs and the others, but Fernandez was praised for his skillful handling of pretrial maneuvering.
He was one of four Bush appointees to the 9th Circuit and just last month took senior status. That allows him to accept a reduced caseload and eliminates him from voting on requests for the court to rehear cases by an en banc panel.
Fernandez has issued hundreds of opinions that reflect his generally conservative philosophy.
Earlier this year he wrote for a divided 2-1 panel that the government can deny a passport to any parent who owes substantial child support payments, requiring a Southern California attorney and mother to pay more than $20,000 in back child support. Eunique v. Powell, 281 F.3d 940.
In 1995, he held that union members' right to bring court suits, guaranteed under federal law, was violated by a contract agreement that required the losing party in any challenge to an arbitration decision to pay the prevailing side's attorney fees. Moore v. Local 569, Int. Brotherhood of Electrical Workers, 53 F.3d 1054.
He also wrote in 1994 that an Oregon school district's policy of mandatory, random urine testing of all student athletes violates the Oregon Constitution's right to be free from unreasonable searches, Acton v. Vernonia School District, 515 U.S. 646 (2002). That ruling is now out of step with the Supreme Court's decision last month that the Fourth Amendment permits suspicionless drug testing of public school students who want to participate in any extracurricular activities, Bd. of Education v. Earls, 122 S.Ct. 2559 (2002).
In a significant employee rights case, Fernandez wrote the 1997 majority in an 8-3 en banc decision that Microsoft contract workers were official employees for tax and benefit purposes and entitled to participate in the company savings and employee stock purchase plans. But Fernandez sent the case back to the trial court, holding that it was up to the company's plan administrator to determine if individual contract workers qualified. Vizcaino v. Microsoft Corp., 120 F.3d 1006. Five of the eight judges joining in his majority said Fernandez should not have involved the plan administrator. They would have allowed the workers to participate automatically. But the five votes were one shy of the majority needed to carry that point.
Fernandez also dissented in a 1995 decision that struck down Arizona's constitutional amendment declaring English the official language of the state government. The majority held that the provision violated free speech rights of government employees. An 11-judge en banc panel reconsidered, but by 6-5 again struck it down. Yniguez v. Arizonans for Official English, 69 F.3d 920.
Fernandez, the lead dissenter, wrote that the state has a right to choose policy and government employees can be regulated when they speak for the state.
The U.S. Supreme Court later sent the case back, not on its merits, but procedurally, because the case was moot because the state employee who brought the suit had quit.
In another case affecting minorities, Fernandez joined the 7-4 en banc panel that held California teachers must pass a reading, writing and math exam to retain their teaching credentials. Association of Mexican-American Educators v. California, 231 F.3d 572 (2001). The test, known as CBEST, was challenged as discriminatory to minorities. The majority did grant $216,000 in attorney fees to the plaintiffs, however, for bringing an important issue to the court.
That was too much for Fernandez. He dissented on the fees, saying lack of money was "hardly a good reason to allow [minority teachers] to impose enormous costs upon defendants. I see no reason to encourage them to cause great expense to their adversaries, safe in the knowledge that there is little downside to their efforts."
Said one Hispanic attorney who asked not to be identified, "I hope he was not appointed to represent the Hispanic community. He emphatically does not. He is a European Spaniard and not empathetic with Hispanics at all."
Fernandez wrote the majority opinion in a 10-1 en banc decision to reinstate two men's death sentences in Arizona in 1999, even though the trial judge used dual juries to try both men together. His opinion found there was no per se constitutional error in the use of dual juries and rejected "any suggestion" from a prior circuit decision that the use of dual juries in capital cases might be unconstitutional. Lambright v. Stewart, 191 F.3d 1181 (1999).
He dissented from a decision in May that family members have a constitutional property right to the body of a deceased relative. The majority granted the right to sue to parents of children whose corneas were harvested without their parents' knowledge or consent. Fernandez disagreed, saying families have a duty but not a right to dispose of a loved one's body.
"I do not believe that the asthenic legal interest in a decedent's body, which California confers upon relatives and others, should be treated as a puissant giant for federal constitutional purposes," he wrote. Newman v. Sathyavaglswaran, 287 F.3d 786 (2002).
Ferdinand F. Fernandez
judge
9th U.S. Circuit Court of Appeals
Career Highlights: Appointed by President George H.W. Bush, 1989; U.S. District judge, Los Angeles 1985-89; San Bernardino Superior Court judge, 1980-85; private practice Allard, Shelton & O'Connor, Pomona 1964-1980.
Law School: USC, 1962.
Age: 65
Recent cases before Fernandez and the attorneys involved:
Vizcaino v. Microsoft Corp., 120 F.3d 1006 (1997).
Plaintiffs: Stephen K. Strong, Bendich, Stobaugh & Strong, Seattle.
Defendants: Ethan Lipsig, Paul, Hastings, Janofsky & Walker, Los Angeles.
Newdow v. U.S. Congress, 2002 DJDAR 7229
Plaintiff: Michael Newdow, pro se
Defendant: Kristin S. Door, Assistant U.S. attorney, Sacramento
Association of Mexican-American Educators v. State of California, 231 F.3d 572 (2001).
Plaintiff: John T. Affeldt, Public Advocates, San Francisco
Defendant: R. Lawrence Ashe Jr. Paul, Hastings, Janofsky & Walker, Atlanta, Ga.
U.S. v. Knights, 219 F.3d 1138 (2000)
Appellant: Hilary Fox, deputy public defender, Oakland
Appellee: Martha Boersch, Assistant U.S. attorney, San Francisco
Gentala v. City of Tucson, 275 F.3d 1160 (2002)
Plaintiff: Kevin Theriot, American Center for Law & Justice, Lawrenceville, Ga.
Defendant: Thomas Berning, city attorney of Tucson
Pamela Mac Lean
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