Official Publication of the Minnesota State Bar Association


Vol. 61, No. 11 | December 2004
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New Faces on the 8th Circuit:
Do Recent Appointments Portend a Change?

Six new judges are getting settled in at the 8th Circuit Court of Appeals. Their judicial personalities have yet to emerge. Their backgrounds and early decisions are nonetheless instructive and, thus, of interest to 8th Circuit practitioners.

by Matthew E. Johnson

After one term in office, President George W. Bush already has made a significant impact on the United States Court of Appeals for the 8th Circuit.  Between 2001 and 2004, President Bush filled six vacancies on the court — a majority of judges on the 11-judge court.  By comparison, President Bill Clinton appointed two judges to the 8th Circuit during his two terms in office.

This article is an introduction to the six newest judges on the 8th Circuit.  It is intended to help you predict how the new judges will decide cases in the years to come, based on the information available to us today.  Of course, an evaluation of a judge cannot fairly be made except by looking at what the judge has done during the course of his or her service on the court.  Someday, someone will look backwards at the public record and draw fully informed conclusions about each of these newly appointed judges.  But, as Kierkegaard said, life must be lived by looking forwards.

Judge William J. Riley

Judge Riley was appointed to the court on August 16, 2001, and has his chambers in Omaha, Nebraska.  He is one of only three active judges on the court today who were appointed to the 8th Circuit directly from private practice.

Riley attended the University of Nebraska for both his undergraduate education and his law degree, which he received in 1972. While in law school, he was editor-in-chief of the Nebraska Law Review.  He then clerked for 8th Circuit Judge Donald P. Lay.

After his clerkship, Riley joined the Omaha firm of Fitzgerald, Schorr, Barmettler & Brennan, where he practiced for 28 years. He typically handled insurance defense cases and commercial disputes, though he occasionally took a plaintiff’s personal injury case.  He enjoyed an excellent reputation in Nebraska and held numerous positions in bar organizations. He was a member of the American College of Trial Lawyers. 

By all accounts, Riley appears to have been one of the premier lawyers in Nebraska prior to his appointment.  One Lincoln, Nebraska, lawyer described Riley as “decent, fair, sharp, and likeable.”  Another Lincoln lawyer described him as a “top-notch lawyer” and “gentleman” who had an ability to be both calm and tenacious in difficult situations.  An Omaha lawyer who knows the judge well said that he was a “very good trial lawyer,” which may lead him to hold lawyers to an uncomfortably high standard.

Judge Riley has a reputation for being active and engaging at oral argument and well-prepared.  I have observed Judge Riley ask questions by quoting from transcripts in the appendices, which indicates a tendency to delve deep into the factual record and to be precise with the facts.

Having been on the 8th Circuit for more than three years, Judge Riley has written approximately 150 majority opinions, nine concurring opinions, and six dissenting opinions.  His writings reveal a generally conservative judicial philosophy. Among the most interesting of his concurring and dissenting opinions is his concurrence in the dismissal of a lawsuit challenging a high school graduation prayer. Judge Riley wrote separately to emphasize that the school board member who delivered the prayer did so without the knowledge or approval of the school district.1  In a Title VII retaliation case, he dissented from the reversal of JNOV for the employer, thoroughly explaining why the plaintiff had failed to present sufficient evidence to prove his claim.2 And he wrote a long dissent from the court’s decision to deny en banc review of a panel opinion that upheld a $151 million judgment against the state of Nebraska, contending that the judgment violated the state’s sovereign immunity.3

Judge Michael J. Melloy

Judge Melloy was appointed to the court on February 26, 2002, and has his chambers in Cedar Rapids, Iowa.  He is well-known to Iowa lawyers because he has been on the bench for 18 years.  He was elevated to the court of appeals from a district court judgeship in the Northern District of Iowa, which he had occupied since 1992.  Before that, he was a federal bankruptcy judge for six years.

Melloy was born and raised in Dubuque, Iowa.  He graduated from Dubuque’s Loras College and from the University of Iowa Law School.  He served in the U.S. Army for two years between college and law school. Before becoming a bankruptcy judge, he practiced for 12 years at the Dubuque firm of O’Connor & Thomas, where he had a general civil and commercial litigation practice.

Thad J. Collins, a Cedar Rapids, Iowa, lawyer who clerked for Judge Melloy on the district court, describes him as “a lawyer’s judge in the sense that he likes lawyers, the interplay of legal and factual issues, and the live interaction with lawyers.” He said Judge Melloy is bright and thoughtful and will “ask questions to probe how far you are willing to take your position” so as to determine its effect on future cases. He said that the consensus among Iowa lawyers is that the judge “has a moderate instinct but is not afraid to take a position if you really give him the facts and law to support it.” Collins also said that the judge is “a likeable guy who remembers what it was like to be a lawyer and practice before the court” and, thus, is inclined to be charitable in his treatment of lawyers.

Since joining the court in 2002, Judge Melloy has written approximately 115 majority opinions, two concurring opinions, and eight dissenting opinions.  His written opinions on the 8th Circuit appear to place him to the left of center on the ideological spectrum of the court. His dissents typically have been responses to decisions by a majority of more-conservative judges. For example, in a death penalty case decided by the court en banc, he dissented from the denial of habeas relief on the ground that the application of an aggravating factor deprived the petitioner of his due process rights.4  In a criminal appeal, he dissented from a panel opinion (authored by Judge Riley) holding that attempted auto theft was a “crime of violence” under the U.S. Sentencing Guidelines, thus warranting an enhanced sentence.5  In a class action brought by juvenile inmates, he dissented from a panel opinion denying an award of attorneys’ fees.6 And most recently, in a Title VII race discrimination case, he dissented from part of a panel opinion that affirmed a summary judgment, writing that the case should go to the jury because the plaintiffs had expert testimony of statistically significant differences in pay.7

Judge Lavenski R. Smith

Judge Smith was appointed to the court on July 19, 2002, and has his chambers in Little Rock, Arkansas.  He was born and raised in Hope, Arkansas, the birthplace of former President Bill Clinton.  He attended the University of Arkansas for both his undergraduate work and law degree, which he received in 1987.  Judge Smith is the only African American among the court’s 11 active judges and the second African American to have served on the court.

Smith spent the first four years of his legal career with Ozark Legal Services.  He then opened his own law firm in Springdale, Arkansas, where he handled a variety of civil cases. While in private practice, he also served as an advisor to the Rutherford Institute, a public interest group focused on civil liberties, working on pro-life legal issues.  After three years in private practice, he became a business law professor at John Brown University in nearby Siloam Springs, Arkansas.

In 1996, Smith joined the staff of Governor Mike Huckabee, who also is a native of Hope, Arkansas.  From 1999 to 2000, he completed the term of a retired justice on the Arkansas Supreme Court.  Other than his brief tenure on that court, he was, from 1997 to 2002, a commissioner on the Arkansas Public Service Commission, which regulates utilities in Arkansas.

A Little Rock, Arkansas, lawyer who knows the judge well, Robert S. Shafer, describes Judge Smith as “deliberative and calm,” a “very steady personality,” and a “straight-shooter.”  He believes that the judge will be very open-minded, even on issues where he has settled convictions.  Little Rock lawyer William “Buddy” Sutton described the judge as “studious” and “hard-working” and added that he was an excellent choice for the 8th Circuit.

Since joining the court, Judge Smith has authored approximately 100 majority opinions, two concurring opinions, and seven dissenting opinions.  His opinions appear to place him slightly to the left of center on the court ideologically, but with some unpredictability. He has dissented three times in search-and-seizure cases, each time taking the position that investigating officers did not comply with the 4th Amendment.8  He also joined an en banc dissent favoring the suppression of a criminal defendant’s confession on the ground it was involuntary.9 In employment discrimination cases, he has written a dissenting opinion to oppose a remittitur from $200,000 to $10,000,10 and he has joined in an en banc dissent that took the position that an employee could prove a claim of race discrimination in a promotion even though he never formally applied for the position.11 His dissenting opinions, however, reveal a tendency to approve of government agency actions.  In one case, he dissented from the reversal of the Bureau of Immigration Appeals’ denial of an asylum application.12  And in another, he dissented from an opinion holding that an SEC enforcement action was not “substantially justified” and, in so doing, caused two other judges to vote for rehearing en banc.13

Judge Steven M. Colloton

Judge Colloton was appointed to the court on September 30, 2003, and has his chambers in Des Moines, Iowa.  He came to the bench directly from the position of U.S. Attorney for the Southern District of Iowa.

Colloton is a native of Iowa City, Iowa.  He received his undergraduate degree from Princeton University in 1985 and his law degree from Yale Law School in 1988. Following law school, he served as a law clerk for D.C. Circuit Judge Laurence H. Silberman and later as a law clerk for Chief Justice William H. Rehnquist. Colloton then worked for two years in the U.S. Department of Justice’s Office of Legal Counsel.

In 1991, Colloton left Washington, D.C., and returned to Iowa to become a prosecutor.  He was an assistant U.S. attorney in the Northern District of Iowa until 1999.  He prosecuted drug trafficking cases and also was the office’s appellate expert.  From 1995 to 1996, he accepted a detail assignment to the Office of the Independent Counsel in Little Rock, Arkansas, where he worked for Kenneth W. Starr, primarily on the prosecutions of Governor Jim Guy Tucker and Jim and Susan McDougal.  From 1999 to 2001, he worked for the Belin Lamson firm in Des Moines.

I became acquainted with Colloton in the early 1990s during my one-year clerkship in Cedar Rapids and am not at all surprised to see him now on the federal bench.  Collins, the Cedar Rapids lawyer, has known Colloton since high school and says that the judge has “a rigorous intellect to match the blue-chip resume.”  He said the judge also has “a tremendous work ethic and will be tremendously well-prepared.”  Lawyers appearing in front of Judge Colloton have seen him take the bench with the appendices in his arms, with yellow tabs marking certain pages.  Judge Colloton reportedly is active in oral argument, often aggressively pursuing a line of questioning to fully explore an issue. Collins said the judge is “formal, traditional, and scrupulously respectful of rules, process, and the dignity of proceedings.”  He also said the judge is “almost a virtual walking encyclopedia of the law, especially Supreme Court law.”

In his first year on the bench, Judge Colloton has authored approximately 30 majority opinions, four concurring opinions, and five dissenting opinions.  His opinions thus far do not so much reflect a conservative judicial philosophy, as might be expected given his background, but rather a strong interest in neutral, jurisprudential issues. In one commercial case, he dissented on the ground that the plaintiff had not sufficiently pleaded its principal place of business so as to create diversity jurisdiction.14 In a Section 1983 case, he authored a concurring opinion discussing whether the court had jurisdiction over an appeal from the denial of qualified immunity.15  And in a recent civil forfeiture case, he disagreed with the majority’s decision to remand the case for further fact-finding and also questioned the court’s use of a multifactor balancing test for interpreting the Excessive Fines Clause, saying that such tests “increase the discretion of judges, … heighten the risk of arbitrary decisionmaking, and reduce predictability.”16

Judge Raymond W. Gruender

Judge Gruender was appointed to the court on June 4, 2004, and has his chambers in St. Louis, Missouri.  He came to the bench directly from the position of U.S. Attorney for the Eastern District of Missouri.

Gruender was born and raised in St. Louis.  He graduated from high school in 1981 and then attended Washington University, where, within six years, he received a bachelor’s degree, an MBA degree, and a law degree.

After graduating from law school in 1987, Gruender joined the St. Louis firm of Lewis, Rice & Fingersh, where he was an associate for three years, working on both civil and criminal cases. He then became an assistant U.S. attorney in the Eastern District of Missouri, a position he held for four years. He resigned from that position in 1994 to run for election as St. Louis County Attorney, though he lost to the incumbent.

Gruender then joined the St. Louis firm of Thompson Coburn as a partner. He remained there for six years, practicing primarily white-collar criminal law.  In 2000, he rejoined the U.S. Attorney’s Office. He was an assistant U.S. attorney for one year, was appointed interim U.S. attorney in early 2001, and was nominated and confirmed to that position in late 2001.

One Missouri attorney who knows Gruender well described him as “really bright” but not interested in showing off and perhaps not as analytical as other, similarly bright judges. This lawyer described the judge as “a very unassuming person, not self-important at all.”  Gruender’s successor as U.S. attorney, James G. Martin, who has worked alongside Gruender, said that Gruender was responsible for several high-profile public corruption cases, including prosecutions of St. Louis County Council members, several members of city government, and a scandal that implicated both attorneys and judges in the Missouri workers’ compensation system.  Martin said that Gruender “went after Republicans and Democrats with equal vigor.”

It is a matter of public record that Gruender has achieved much despite a very modest upbringing. At his investiture on October 14, 2004, the judge commented that his father, who dropped out of high school at age 16 to work as a house painter, took a job as a janitor at Gruender’s Catholic high school so that the family could better afford tuition. Gruender himself began working for money at age ten by scraping paint for his father for 25 cents per hour.  Gruender also held part-time jobs throughout high school, college, and graduate school.  Missouri lawyers who know him say he is incredibly dedicated and hard-working.

It is noteworthy, and perhaps relevant to his work as a judge, that Gruender’s personal life has been significantly touched by violent crime.  On September 1, 1986, when he was a law student, his father pointed a gun at him, his younger sister, and his younger brother while demanding to know the whereabouts of their mother, who had fled the home to avoid continued spousal abuse.  During the stand-off, Gruender’s father shot Gruender in the chest and shot his sister in the stomach.  Gruender nonetheless knocked his father to the floor before his 12-year-old brother could be shot.  As Gruender and his sister went to the hospital, the father retreated to a bedroom and committed suicide.  The ordeal led to Gruender’s significant involvement with a nonprofit organization that assists victims of domestic violence.17

Judge Gruender joined the court so recently that, as this article goes to press, he has not yet authored an opinion.  He has, however, voted for rehearing en banc on three occasions.  One case was a business dispute in which the court approved a punitive damages award that was approximately 4.5 times compensatory damages.18  Another was the securities case mentioned above, in which Judge Smith wrote the dissenting opinion.19  And another was a free-speech case in which anti-abortion protestors were arrested for violating a loitering ordinance after passers-by complained.  The panel held that the arresting police officers had qualified immunity for the arrests, which generated a dissenting opinion and four votes to rehear the case en banc.20

Judge W. Duane Benton

Judge Benton was appointed to the court on July 2, 2004, and has his chambers in Kansas City, Missouri.  He most recently was a justice on the Missouri Supreme Court.

Benton was born and raised in Missouri.  He received his undergraduate degree from Northwestern University in 1972 and his law degree from Yale Law School in 1975. After law school, he volunteered for service in the U.S. Navy and was in active duty for five years. While in the Navy, he also obtained a MBA degree. The judge continued to serve in the Navy Reserves until he retired from military service in 2002 with the rank of Captain. In 1980, following his active service in the Navy, Benton was the campaign manager for Congressman Wendell Bailey’s first campaign, and he thereafter served as chief of staff to the congressman during his first term in office.

In 1983, Benton returned to Missouri to practice law at the Tettlebaum Law Office in Jefferson City.  During his six years in private practice, Benton concentrated on health care law and administrative law, often handling constitutional issues.  He also practiced tax law, taking advantage of his CPA license. While on the Missouri Supreme Court, he often was called upon to write opinions on administrative law and tax issues.

In 1989, Benton was appointed to the cabinet-level position of Director of the Missouri Department of Revenue by then-Governor John Ashcroft.  In 1991, Governor Ashcroft appointed him to the Missouri Supreme Court.

Harvey M. Tettlebaum, who was Benton’s mentor in the 1980s, said that the judge is “very smart” and “uniformly polite and courteous.”  He said the judge asks good questions at oral argument but avoids embarrassing lawyers. He said the judge has “a very upbeat, positive demeanor,” which may cause lawyers to underestimate the seriousness of his questions.  Tettlebaum would advise lawyers to listen carefully to the judge’s questions because he knows precisely what information he wants to obtain. Tettlebaum also described the judge as “very practical, not ideological.”

Since joining the 8th Circuit only a few months ago, Judge Benton has authored only one opinion, which affirmed a judgment for a person who was detained in a county jail for 38 days prior to his initial appearance, which was found to be a violation of his substantive due process rights.21  He also voted for rehearing en banc in the free-speech case mentioned above.22

Change or Continuity?

The last time a single president appointed a majority of the judges on the 8th Circuit was when President Ronald Reagan appointed six judges to the court between 1982 and 1987 (Judges John R. Gibson, George G. Fagg, Pasco M. Bowman, Roger L. Wollman, Frank J. Magill, and C. Arlen Beam).  President George H.W. Bush then appointed three judges to the court between 1990 and 1992 (Judges James B. Loken, David R. Hansen, and Morris S. Arnold).  Only three of the nine judges appointed during that ten-year period remain active judges today,23 though it should be noted that senior judges on the 8th Circuit may be assigned to sit on panels and most of them do so frequently.

In light of these recent appointments, the 8th Circuit today has a higher proportion of Republican-appointed judges than any other circuit court: nine of eleven, or 82 percent, of the court’s active judges were appointed by Republican presidents.  The 5th and 7th circuits also have large Republican-appointed majorities, with approximately 75 percent each. In several other circuits Republican appointees have a slight edge in numbers; the 6th is evenly divided in that respect; and the 2nd, 9th, and 10th have a majority of Democrat-appointed judges.24

It also should be noted, however, that the six new judges may not be more conservative than the six judges they replaced in active service (Judges C. Arlen Beam, George G. Fagg, Richard S. Arnold,25 David R. Hansen, Theodore McMillian, and Pasco M. Bowman).  The judges who were replaced include some known as conservatives but also two appointees of President Jimmy Carter who were known as liberals. Of the six new judges, Judge Melloy is very similar in voting patterns to his Democrat-appointed colleagues, and the same could be said of Judge Smith.  Thus, President George W. Bush’s six appointments may not result in any significant change in the court’s overall ideological balance.

By providing these data and comments, I do not mean to give credence to the common perception that judges are political actors whose behavior is expected to conform to the views of the presidents who appointed them.  To be sure, our federal judiciary is as independent as can be imagined, and that is a good thing.  Each judge has the security of knowing that he or she “shall hold their Offices during good Behavior,”26 which has been broadly construed, and “shall … receive … a Compensation, which shall not be diminished during their Continuance in Office.”27  In addition, it is not entirely accurate or fair to draw conclusions from only a handful of cases, each of which has its own particular facts and nuances that are not easily captured in a short article.

Nonetheless, a good practitioner will consider all relevant information when presenting arguments to a court.  Understanding the six newest judges on the 8th Circuit — as well as all judges on the court — is an essential part of that task.

Notes
1 Doe ex rel. Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 616-17 (8th Cir. 2003) (Riley, J., concurring).

2 EEOC v. Kohler Co., 335 F.3d 766, 777-82 (8th Cir. 2003) (Riley, J., dissenting).

3 Entergy Arkansas, Inc. v. Nebraska, 366 F.3d 688, 689-91 (8th Cir. 2004) (Riley, J., dissenting from denial of petition for rehearing en banc).

4 Moore v. Kinney, 320 F.3d 767, 790-91 (8th Cir. 2003) (en banc) (Melloy, J., dissenting).

5 United States v. Sun Bear, 307 F.3d 747, 753-56 (8th Cir. 2002) (Melloy, J., dissenting).

6 Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 995-1000 (8th Cir. 2003) (Melloy, J., dissenting).

7 Morgan v. United Parcel Serv., Inc., 380 F.3d 459, 472-73 (8th Cir. 2004) (Melloy, J., dissenting).

8 United States v. Barnes, 374 F.3d 601, 605 (8th Cir. 2004) (Smith, J., dissenting); United States v. Logan, 362 F.3d 530, 534-36 (8th Cir. 2004) (Smith, J., dissenting); United States v. Adams, 346 F.3d 1165, 1172-73 (8th Cir. 2003) (Smith, J., dissenting).

9 United States v. LeBrun, 363 F.3d 715, 727-29 (8th Cir. 2004) (en banc) (M. Arnold, J., dissenting) pet. for cert. filed, 73 U.S.L.W. 3162 (07/08/04) (No. 04-332).

10 Eich v. Board of Regents for Central Missouri State Univ., 350 F.3d 752, 766-67 (8th Cir. 2003) (Smith, J., concurring in part & dissenting in part).

11 Lockridge v. Board of Trustees of Univ. of Arkansas, 315 F.3d 1005, 1013-16 (8th Cir. 2003) (en banc) (Heaney, J., dissenting).

12 Bellido v. Ashcroft, 367 F.3d 840, 846 (8th Cir. 2004) (Smith, J., dissenting).

13 sec v. Zahareas, 374 F.3d 624, 631-33 (8th Cir. 2004) (Smith, J., dissenting).

14 Capitol Indemnity Corp. v. Russellville Steel Co., 367 F.3d 831, 837-40 (8th Cir. 2004) (Colloton, J., dissenting).

15 Parks v. Pomeroy, No. 03-2043, 2004 WL 2480268, at **7-8 (8th Cir. 11/05/04) (to be published at 387 F.3d 949) (Colloton, J., concurring).

16 United States v. Dodge Caravan Grand SE Sport Van, 387 F.3d 758, 764, 766 (8th Cir. 2004) (Colloton, J., dissenting).

17 Tim Bryant, “Tough Childhood Couldn’t Keep Official from Excelling in Law,” St. Louis Post-Dispatch, 08/12/01, at D1.

18 Eden Elec., Ltd. v. Amana Co., 370 F.3d 824, 827-29 (8th Cir. 2004).

19 See supra note 13.

20 Frye v. Kansas City Police Dep’t, 375 F.3d 785 (8th Cir. 2004).

21 Hayes v. Faulkner County, No. 03-3787, 2004 WL 2414160 (8th Cir. 10/29/04) (to be published).

22 See supra note 20.

23 U.S. Court of Appeals for the 8th Circuit, 8th Circuit Court of Appeals Judges, http://www.ca8.uscourts.gov/newcoa/coaFrame.html (last visited 11/05/04).

24 Alliance for Justice, Active Judges Report, available at http://www.allianceforjustice.org/judicial/judicial_selection_resources/selection_database/activeJudges.asp (last visited 11/05/04).

25 Regrettably, former Chief Judge Richard S. Arnold of Little Rock, Arkansas, died of complications from lymphoma on September 23, 2004, at the Mayo Clinic in Rochester, Minnesota.  See Neil A. Lewis, Obituary, “Richard S. Arnold, 68, Judge Once Eyed for Supreme Court,” N.Y. Times, 09/25/04, at B9.  He was a favorite of other judges and surely will be missed.

26 U.S. Const., art. III, §1.

27 Id.


MATTHEW E. JOHNSON is a shareholder at Halleland Lewis Nilan & Johnson, P.A., in Minneapolis.  He previously served as a law clerk to 8th Circuit Judge David R. Hansen.