By Joan Biskupic

Monday, July 5, 1999; Page A19

Justice Benjamin Cardozo once compared a judge who dissents in a case to a gladiator making a last stand against the lions. At the Supreme Court, where voices are rarely raised and restraint is the norm, a fierce dissent can be a mighty sword. The more so when done from the court's elevated mahogany bench.

Six times this term, various justices disagreed with the majority so strongly that they chose to make their points out loud, in public and with flourish.

When the court struck down a Chicago ordinance prohibiting gang loitering, Justice Antonin Scalia said in a scalding dissent:

"I would trade my right to loiter . . . in return for the liberation of my neighborhood in an instant."

On the last day of the 1998-99 term, when a majority said private individuals couldn't sue states over violations of federal rights, Justice John Paul Stevens accused the court of crafting a doctrine "much like a mindless dragon that

indiscriminately chews gaping holes" in federal laws. That last morning of the term, June 23, produced an extraordinary hour of statements from the bench, including dissents by Justices David H. Souter and Stephen G. Breyer.

Traditionally only the author of the majority opinion delivers excerpts and a dissenting justice leaves his or her remarks for the written documents. But increasingly justices have been voicing their contrary views.

Because it's a break from the usual pattern and a demand for special attention, it is not a path for the timid.

MAKE IT DRAMATIC: A decade ago when the justices by one vote struck down a Texas statute against flag burning, Stevens, a Navy veteran and Bronze star winner, dissented, evoking memories of "the soldiers who scaled the bluff at Omaha Beach."

The year before, in 1988, when Scalia was the only dissent against upholding the independent counsel law, he spoke passionately for 10 minutes. "By its shortsighted action today, I fear the court has permanently encumbered the Republic with an institution that will do it great harm," he declared.

When the majority ruled this past May that students can sue schools for sexual harassment, Justice Anthony M. Kennedy predicted that schools would be hit by an "avalanche" of lawsuits and said the ruling would teach "little Johnny" a bad

lesson. Justice Sandra Day O'Connor, the author of the majority opinion, had offered a preemptive rejoinder: No, the ruling would make sure "that little Mary may attend class."

Harry A. Blackmun was one justice who did not shy from revealing his emotions, and in 1993 he declared, "The execution of a person who can show that he is innocent comes perilously close to simple murder" when the majority ruled federal judges are not required to halt the executions of Death Row inmates

who've exhausted their appeals and then claim new evidence of innocence.

INVOKE HISTORY: "The court today holds for the first time since the founding of the Republic . . . " Souter proclaimed in the 1996 case that was a prelude to this term's states' rights cases. This time around, when Souter dissented, his distinct Yankee voice could not have been firmer when he declared the majority flat wrong.

In 1991, when the majority said criminal defendants may sometimes be convicted even if their confessions were coerced, Justice Byron R. White proclaimed, "Today, a majority of the court, without any justification, overrules . . . vast body of precedent." White's thunder was especially remarkable because he had a reputation for the tersest announcements even on majority opinions.

PREDICT DIRE CONSEQUENCES: In 1994, when the majority ruled that judges could stop demonstrators from closely approaching abortion clinics on public sidewalks, Scalia angrily asserted that the court "has left a powerful loaded weapon lying about today" to suppress all sorts of important protest.

When the court invalidated a Georgia redistricting plan in 1995, Justice Ruth Bader Ginsburg said from the bench it would create endless litigation and perilous results. Two years later, when O'Connor dissented out loud from a ruling striking down the Religious Freedom Restoration Act, she emphasized how

an earlier ruling--which the 1993 act was intended to reverse--was an affront to those who wanted to freely exercise their religious faith.

WHY DO THEY DO IT? Justice Stevens once said he read a dissent from the bench because he didn't want his views to get lost in the shuffle of the day's news.

Sometimes a dissent is simply the best way to have one's say, despite the loss. "The right to dissent," Justice William O. Douglas once said, "is the only thing that makes life tolerable."

c Copyright 1999 The Washington Post Company

Federal and Local Agencies Spar Over Seized Assets

By John Hendren

Associated Press

Monday, July 5, 1999; Page A19

When Arkansas state troopers found $3 million in cash in trucker Roberto Zamarripa's cargo, they declared the "tainted" money property of the county. By the time county prosecutors got to court, they found another claimant: the federal government.

As Congress weighs whether to make it harder to seize citizens' property, federal and local agencies fight in courtrooms throughout the country over the spoils of asset forfeiture. The disputes reveal this incentive: Cash-strapped law enforcement agencies seek not mere punishment, but money as well, from

citizens with property that police think might be linked to crime.

"Forfeiture laws have run amok," said Steven Kessler, a trial lawyer who once headed the asset forfeiture unit of the Bronx district attorney's office. "The focus is no longer on combating crime. . . . It's on fund-raising."

In the Arkansas case, Zamarripa made no claim to the money. A local prosecutor sued to recover it from a federal agency that "adopted" the forfeiture from cooperative state police.

Critics say the Arkansas Highway Police wanted the $2.8 million they would get under a federal forfeiture. Under a state seizure, they would recoup only $250,000. The yearlong feud ended in March with Crittenden County keeping the cash.

The disputes between governments occur because many states--like Arkansas, Missouri and Kansas--give law enforcement agencies a smaller slice of forfeited money than the 50 percent to 85 percent they would get from Washington. In many states they get only expenses--an officer's gas or overtime, for example--for their efforts.

Officers who seized Zamarripa's cash had a good reason for going to the feds, Arkansas Highway Police spokesman Randy Ort said.

"We turned it over to the federal government because it was an interstate case," he said, noting that the driver was just passing through. "We don't do that to raise money."

In Missouri, state law requires that money seized in the state go for education. But local police often turn over forfeited money to the federal government in exchange for a larger slice of the cash, saying the money isn't actually "seized" until they pass it on to federal agents.

"What they do is engage in an end-run around the legislature's intentions," said Roger Pilon, legal affairs director of the Center for Constitutional Studies at the libertarian Cato Institute. "It signifies the greed that is just below the surface in the . . . forfeiture arena."

In one case last year, a judge fumed that federal agencies were usurping states' rights. Judge James B. Loken of the 8th U.S. Circuit Court of Appeals questioned whether federal agencies were "using their extensive forfeiture powers to frustrate the fiscal policy of states such as Missouri."

Once the federal government gets the money, getting it back can be difficult, even for someone never accused of a crime.

Ask Fernando Marquez.

Pursuing Marquez's son on gambling charges in 1995, police found two safety deposit keys in his house in New Rochelle, N.Y. The keys led police to $490,920, which they seized. The elder Marquez went to court, arguing it was his money and his bank box.

When a New York judge ordered the money returned, the district attorney's office said it had been turned over to the FBI--without the required court order. After 3 1/2 years of court wrangling and mounting legal fees, Marquez agreed to accept half the sum. After legal fees, he got $177,053 back--about one-third. He was never accused of wrongdoing.

"For an innocent person, it's like a stickup," says Marquez, 60.

Last month, the House passed a bill requiring the federal government to prove with "clear and convincing" evidence that property was eligible for forfeiture if an owner files a legal challenge. To take Marquez's money, police needed only show "probable cause," the lowest level of proof under the law, that the property was used in a crime.

The legislation, now pending in the Senate, would also:

* Require officers to prove criminality, not simply allege it;

* Require the government to give owners notice before seizing property;

* Enable a judge to release property to the owner if continued government possession would pose a substantial hardship;

* Allow some owners of seized cash to receive interest on the amount returned.

Police often have strong incentive to seize property. Joseph MacNamara, former police chief in San Jose, Calif., recalls asking the city manager why the city budget had no allocation for police equipment.

"He dismissively said, 'You guys seized $4 million last year. I expect you to do better this year,' " MacNamara wrote in a newspaper opinion piece.

It's no different at the federal level. In 1990, the Justice Department was falling short of the $470 million in forfeitures the agency expected.

"Every effort must be made to increase forfeiture income,"

Attorney General Richard Thornburgh warned federal prosecutors.

c Copyright 1999 The Associated Press

 Controversial Reformer Decides to Bow Out

By Bill McAllister

Washington Post Staff Writer

Wednesday, June 30, 1999; Page A29

Kenneth W. Kizer, the former California emergency room physician who revolutionized the way the nation cares for its ailing veterans, decided yesterday not to seek a second term as the top doctor in the Department of Veterans Affairs.

Kizer, 48, took charge of the VA's far-flung network of 172 hospitals in 1994 and devised a controversial plan to move patient care out of the hospitals and into hundreds of community-based medical clinics. When Kizer arrived in Washington, the number of veterans was declining rapidly and soaring medical costs had taken their toll on the quality of VA hospital care. At the same time, private hospitals were pioneering the use of cheaper outpatient care.

Kizer's plan, initially resisted by some VA officials, fundamentally reshaped the federal government's largest hospital system. "He did nothing less than save the veterans health care system," said VA spokesman James Holley, reflecting a widespread sentiment in the department.

Kizer's "Prescription for Change" called for the VA to aggressively offer veterans preventive health care services and treat them when possible outside of its large hospitals. Some veterans, however, feared that reducing the role of the hospitals was a sign of a lessening of the government's commitment to them.

"I don't necessarily need those big buildings," Kizer once said. "But to some people, those buildings have a lot of symbolism."

Among the groups that complained the loudest was the Paralyzed Veterans of America. The organization told Congress last year that under Kizer the VA was neglecting care of veterans with spinal injuries, who need long-term hospital care. Kizer denied that, but critical senators were able to delay his renomination to a second four-year term as the VA's undersecretary for health. Instead they granted Kizer, a registered Republican, a six-month reappointment that expires today. Sen. John F. Kerry (D-Mass.) also had put a hold on his confirmation because of planned cutbacks at hospitals.

Yesterday, Kizer asked the White House to withdraw his renomination, citing the possibility of yet another fight over his confirmation. "I promised both my family and myself that I would not repeat that scenario," Kizer said in a two-page letter to President Clinton.

His family has remained in California while Kizer, a former California state health director, worked at the VA. Aides said his family was a key factor in his decision to leave the department.

In the letter to Clinton, Kizer said he had met his mandate to "reengineer the veterans health care system so that it could effectively function in the 21st century."

"Indeed, without reservation I can tell you that no other health care system in the United States has changed as rapidly or as dramatically as the veterans health care system," he told Clinton.

Those changes "have not been without controversy or their critics," he acknowledged. In addition to criticism from the paralyzed veterans group, his changes increasingly attracted fire from government unions unhappy over a decline in hospital jobs.

However, some veterans groups, including the American Legion, applauded his efforts. "We're very pleased at his efforts at enrolling veterans for health care," said Carroll Williams, the Legion's director of veteran affairs and rehabilitation. "Our only question is whether the budget will allow those veterans to be served."

The Clinton administration has proposed a VA budget that depends on new sources of revenue, such as Medicare and private insurance carriers, to meet the department's growing health care budget and reduce the planned layoffs of VA workers. That approach has brought sharp criticism of the VA from Democrats and Republicans on Capitol Hill.

It is certain to be a major problem for Kizer's successor. He has promised to remain on the job "for a short period of time to assist with an orderly transition." By law, the VA must assemble a search committee to begin reviewing candidates for the next undersecretary.

c Copyright 1999 The Washington Post Company

By Eric Pianin and Helen Dewar

Washington Post Staff Writers

Monday, June 28, 1999; Page A19

Don't mistake last week's House Democratic unity rally on HMO reforms as a sign of reconciliation between Rep. John D. Dingell (Mich.) and his party colleagues.

Many Democrats are still fuming over what they saw as Dingell's devious tactics in joining forces with the National Rifle Association and House Majority Whip Tom DeLay (R-Tex.) to kill Democratic gun control measures on the floor earlier this month.

Rep. Carolyn McCarthy (N.Y.), the Democrats' premier gun-control advocate, whose husband was shot to death on a New York commuter train, stood next to Dingell at the rally, but the two exchanged nary a word.

Some Democrats say Dingell's collaboration with DeLay will be an issue next year if the Democrats win back control of the House and Dingell reclaims chairmanship of the House Commerce Committee.

Dingell's critics say they can forgive him for opposing McCarthy's measures to make it tougher for criminals to purchase guns at shows. After all, he is a former NRA board member and sportsman who for decades has opposed gun control. Moreover, Dingell has argued convincingly that conservative Democrats from marginal districts must be given wide berth on gun control.

But what galled many Democrats was Dingell's high-profile role in opposing McCarthy's measures--against the advice of House Minority Leader Richard A. Gephardt (D-Mo.)--and his pushing through his own plan that loosened some existing rules requiring registered gun dealers to conduct background checks on buyers at gun shows.

"It was a clever [GOP] strategy to use the most senior Democrat to do their bidding for them," said Rep. James P. Moran Jr. (D-Va.). "Dingell is the last of the old bulls and can be useful, but it's too bad he's being useful to the Republicans."

Some Democrats also said they resented Dingell's attempt to pressure Democrats on the Commerce Committee to back him up. "It became a very personal thing for him, and at some point he went out of bounds," said a House aide.

Dingell, 72, a powerful and sometimes menacing figure who has been in Congress for more than 40 years, denies he tried to strong-arm Democrats on his committee. He concedes that he was aggressive and "hit pretty hard."

The Michigan Democrat also dismissed complaints about him as nothing but unfounded gossip. He noted that no one has complained about his conduct--at least not to his face.

J. DENNIS MOSES?: The House and Senate are gearing up for a conference after the July 4 recess to thrash out differences over gun control and major juvenile justice legislation aimed at combating violence among young people. At a meeting with reporters last week, House Speaker J. Dennis Hastert (R-Ill.) was asked whether he would insist that conferees retain a controversial House provision allowing the posting of the Ten Commandments in schools and state office buildings.

"Are there some things that might be nonnegotiable, for example, the Ten Commandments?" a reporter asked.

"I have not tried to negotiate the Ten Commandments,"

Hastert replied, showing he still has a sense of humor despite a rocky start as speaker.

SENATE SALUTE: A decade after the House began opening its sessions with a pledge of allegiance to the American flag, the Senate has followed suit.

The Senate agreed without dissent Wednesday to require a daily flag pledge after a constituent called Sen. Bob Smith (R-N.H.) to ask why the Senate did not open sessions by saluting the flag.

"I said, 'That's a good idea. Why didn't I think of that?' " Smith, a candidate for the Republican presidential nomination, told the Senate Thursday after it took its first pledge.

During the pledge, the young woman who started it all, Rebecca Stuart of Enfield, N.H., sat in the visitors' gallery, holding the flag that had been draped over the coffin of her husband's grandfather, a World War II veteran.

THE WEEK AHEAD: The Senate is entering its second week of

trying to resolve a partisan dispute over managed care,

which is holding up action on at least four appropriations

bills--with no indication of how it will be resolved. The

House will take up financial services legislation and

could finally resolve a legislative dispute over the Y2K

computer glitch problem.

c Copyright 1999 The Washington Post Company