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COURT: Ninth Circuit U.S. Court of Appeals APPOINTMENT: 1996, by President Clinton BORN: June 24, 1934 LAW SCHOOL: Harvard Law School PREVIOUS JUDICIAL EXPERIENCE: Central District of California, 1980-1996 When Ninth Circuit U.S. Court of Appeals Judge A. Wallace Tashima peers over his glasses at you, brace yourself for a challenge. The Clinton appointee has been known to prod lawyers, sometimes phrasing his views on law and procedure as statements, rather than questions — though he manages to not come off as abrasive. Tashima was first appointed to the federal court in 1980 by President Jimmy Carter. After 16 years on the Los Angeles federal bench, he was elevated to the Ninth Circuit by President Clinton. He literally wrote the book on pretrial civil procedure, along with Senior Northern District Judge William Schwarzer and Kerr & Wagstaffe partner James Wagstaffe. His background is in business law, and he is a past director of the Association of Business Trial Lawyers. His experience as a Marine (he served in Korea) sometimes shows through on the bench, but once he doffs the robe Tashima is more like an avuncular grandfather than a legal drill sergeant. Tashima, 69, has ensconced himself on the Ninth Circuit’s moderate-left wing. The Supreme Court is now considering Tashima’s decision in the case of Barden v. City of Sacramento, where the Ninth Circuit ruled that sidewalks are a “service, program or activity” under the Americans with Disabilities Act. “Attempting to distinguish which public functions are services, programs or activities, and which are not, would disintegrate into needless hair-splitting arguments,” Tashima wrote. “The focus of the inquiry, therefore, is not so much on whether a particular public function can technically be characterized as a service, program or activity, but whether it is a normal function of a governmental entity.” In the criminal area, Tashima also leans toward the more liberal wing of the court. He is not, for example, as willing as some to defer to the actions of a police officer. In U.S. v. Sigmund-Ballesteros, Tashima overturned a conviction based on a traffic stop for erratic driving because, Tashima wrote, the officer’s own behavior may have contributed to the “suspicious” behavior of the suspect. “Certainly, an agent cannot create a situation which amounts to a dangerous driving condition, observe the driver react appropriately, and then base reasonable suspicion on the reaction because it somewhat comports with ‘suspicious behavior.’ To do so would give police officers across this circuit carte blanche to harass any driver,” Tashima wrote. Tashima has also held that a homosexual transvestite is eligible for asylum in the U.S. because he is likely to face persecution in his native Mexico. Tashima overturned the Board of Immigration Appeals, which held that the man’s claim was based solely on the fact that he wore women’s clothes. Not so, Tashima wrote. “This case is about sexual identity, not fashion.” Tashima is also not afraid to dissent. He wrote six last year, including one in U.S. v. Buckland, a case which could have upended the federal drug sentencing scheme. An en banc panel approved of the drug sentencing statute, which many feared might be unconstitutional following a recent Supreme Court ruling. Tashima wrote that he would have found it unconstitutional, effects be damned. “The overarching principle of statutory construction is not to avoid finding a statute unconstitutional at all costs,” he wrote. Part of Tashima’s makeup, in particular his unwillingness to defer to the government, no doubt stems from his youth. During World War II, he and his family were sent to live in a Japanese internment camp. Tashima brought last year’s Ninth Circuit annual conference to a standstill when he spoke about his memories in the context of the government’s current war on terrorism. That experience is also why some say Tashima is a stickler for due process. “That phrase ‘a stickler for due process’ is another way of saying ‘a stickler for fairness,’” said Wagstaffe, Tashima’s co-author. Others say Tashima can be prickly in the courtroom, sometimes pinning down lawyers on a point and not letting up. “I think it’s fair to say he considers himself a teacher,” Wagstaffe said. “I don’t think he would think it’s a criticism to be called didactic.” In no way does he dominate a panel, but he will spring to life when the issue strikes him. Christopher Cannon, of San Francisco’s Sugarman & Cannon, said Tashima is keenly aware that his decisions will affect many more cases than the one at bar. Consequently, Tashima will take an argument and apply it to hypothetical situations. It is something lawyers should be prepared for, Cannon said. “The advice I’d give to people is to be prepared for the logical or the illogical extension of your hypothetical argument,” Cannon said. You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/profiles.html or by calling 415-749-5523.

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