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COURT: Ninth Circuit U.S. Court of Appeals APPOINTED: 1994, by President Clinton BORN: Feb. 12, 1945 LAW SCHOOL: Arizona State University College of the Law PREVIOUS JUDICIAL EXPERIENCE: None What were you doing when you were 31? Judge Michael Daly Hawkins was already Arizona’s U.S. attorney. He slowed down after that, putting in another 14 years in private practice before President Clinton nominated him to the Ninth Circuit U.S. Court of Appeals in 1994, when he was 49. Hawkins has written several big opinions. He wrote United States v. Kyllo, allowing police to use heat-sensitive devices to conduct warrantless “searches” of homes, and Rucker v. Davis, overturning the government’s “one-strike” policy of evicting tenants for family members’ drug use. Both were overturned by the Supreme Court. But they help illustrate Hawkins’ jurisprudence — like many of Clinton’s judges, he is generally to the left of center but can issue unpredictable rulings. He sided with the sympathetic elderly tenants in Rucker, but issued a conservative-leaning, pro-police ruling in Kyllo. “There’s a human story behind every one of these cases,” Hawkins says, something he never forgets. Hawkins, 58, grew up in Winslow, Ariz. (made famous in the Eagles song “Take It Easy”) and graduated from Arizona State University College of the Law. In 1998 he received an LL.M. from the University of Virginia School of Law, writing his thesis on the antebellum slave trade. His advice is like that of most other judges: be prepared, know the record, answer the questions — even if it’s an area you would prefer to avoid. “Really good lawyers know what to do with that,” he said. Hawkins’ courtroom demeanor is relaxed. “I’m a pretty low-key guy,” he said. “I try not to get too upset about anything.” That was proved during one recent argument. The panel felt it had a tiger by the tail — an unusual case where the California Department of Toxic Substances Control sued owners of an old motor oil depot, who then filed counterclaims against several other state agencies that just so happened to have been customers of the depot. Led by Hawkins, the panel was convinced the case was about the 11th Amendment — whether one state agency waives immunity enjoyed by others when the first agency files suit. A lawyer for the state balked at arguing the 11th Amendment (“It’s sort of the 800-pound gorilla in the room, isn’t it!” one judge exclaimed.) but then refused to promise that the defense wouldn’t be asserted in the lower court. Hawkins just smiled. “Maybe you can re-present this in front of the Federalist Society, and we can decide once and for all whether this whole 11th Amendment thing makes any sense at all,” he joked. But his extensive background in the courtroom really came to the fore in the next case, about the use of potentially perjured testimony. Hawkins essentially took over the questioning, asking about the defense’s cross-examination of the witness. As one of the longer-serving judges on the court, Hawkins will often head the panels. He said he tries to hold the reins loosely. “To me, if the lawyers are making sense and they’re helping the panel understand the case better, I’ll let them talk. If it’s productive time, it’s time well-spent,” he said. “I think he’s one of the best judges on the Ninth Circuit, and he’s a complete moderate in the best sense of the word,” said Hastings College of the Law professor Rory Little. “He is a careful, case by case, practical, pragmatic judge. He’s not flashy, he doesn’t write [Judge Alex] Kozinski-like flourishes. He’s not histrionic in any particular direction like any number of other judges.” One of Hawkins’ more remarkable decisions of the last year is Dixon v. Commissioner of Internal Revenue. Hawkins ripped into two Internal Revenue Service lawyers for gaming a suit by striking secret settlements in a multi-party case, thus undermining the defense of the rest of the parties. A fraud on the court, Hawkins wrote, is not subject to a harmless error analysis. But the ire he leveled at the two IRS attorneys — “the proceeding was a charade fraught with concealed motives, hidden payments and false testimony” — got the attention of IRS reformers in the Senate, and caused the commissioner of the IRS to issue not one, but two public apologies. In another recent case, he overturned the death sentence of Fred Berre Douglas, a notorious convicted double-murderer suspected of filming the slaying of two teenage girls. Hawkins found that Douglas, the second-oldest man on California’s death row, was ineffectively represented during sentencing. The Supreme Court denied the state’s petition for certiorari last week. Mark Borenstein, of Los Angeles’ Overland & Borenstein, said he was impressed with Hawkins’ grasp of not only the law, but the record itself. “This was well beyond the briefs,” said Borenstein, Douglas’ appellate lawyer. “This was a case that started in 1984. � A very long, complex record.” Ironically, over-preparation is something Hawkins says he tries to avoid. While he expects lawyers to know 100 percent of their case, he wants to know about 85 percent before oral arguments. “I don’t like to be better prepared than the lawyers,” Hawkins said. “I like them to educate me about a case.”

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