Star Tribune from Minneapolis, Minnesota • Page 18

SundayMarch 51995Star Tribune Rules and guidelines governing judicial behavior Who owns THE LAW? -PL. eras ruling favored Wesi Ccdo cf Conduct 3 bt juog recieo prize West Publishing and the courts Was case's integrity compromised? Views differ By Sharon Schmickle and Tom Hamburger Washington Bureau Correspondents "As I think about it now, I think there might have been some question, but nobody would seriously think that was being used to gain favor for West." Judge John Minor Wisdom speaking about a $15,000 award he received from West Publishing. The code of conduct of the Judicial Conference of the United States applies to all federal judges but is only "advisory and nonbinding" on Supreme Court justices. The rules explicitly permit judges to accept and participate in awards programs and to receive certain benefit from legal publishers. Below are the official canons, followed by excel pis of commentary provided by the Judicial Conference.

Canon 1 A judge should uphold the integrity and independence of the judiciary. confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Canon 21 A judge should avoid impropriety and the appearance of impropriety in all activities. judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Canon 3 A judge should perform the duties of the office impartially and diligently. judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party Canon 4 A judge may engage in extrajudicial activities to improve the law, the legal system and the administration of justice. judge, subject to the proper performance of judicial duties, may engage in. law-related activities, if in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge. Canon 5 A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties.

separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not be isolated from the society in which the judge lives. The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the judge's relationship with it. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Canon 6 A judge should regularly file reports of compensation received for law-related and extrajudicial activities. judge may receive compensation and reimbursement of expenses for the law-related and extrajudicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in the judge's judicial duties or otherwise give the appearance of Vv---4ii When Donna Nelson went to federal appeals court to argue the state of Texas' case against West Publishing a judge asked: "Why have you got a bee in your bonnet on this case? Did West do something to make you mad?" West claimed it had a copyright over the arrangements of the state's laws and Nelson, an assistant attorney general, opposed the Minnesota company in court.

Another of the three judges on the Fifth Circuit panel was John Minor Wisdom. The hearing was held Dec. 6, 1988. The following May, Wisdom received a $15,000 prize from West, the Edward J. Devitt Distinguished Service to Justice Award.

He was presented the award at in a ceremony in New Orleans attended by West's then-president, Dwight Op-perman. "I appreciate deeply the honor conferred upon me," Wisdom said at the ceremony. "I thank the Devitt committee and, of course, Mr. Opperman of West Publishing Company." Four months later, in September 1989, the Fifth Circuit judges including Wisdom issued a ruling in the Texas case in West's favor. Texas appealed to the U.S.

Supreme Court. But there was something that Nelson and the state's other lawyers didn't know: Three of the justices Byron White, William Brennan and Sandra Day O'Connor had taken lavish trips at West's expense to meetings in California, Hawaii and Florida. The high court declined to hear the case, leaving West the winner. West may have won in any event. And company executives didn't select Wisdom.

They solicited nominations for the award, then accompanied a committee of judges to a retreat in Rancho Mirage, Calif. paid for by West where the judges chose Wisdom and one other judge who won the Devitt award that year. Wisdom said he used the money to buy a painting for his home. There is little argument that Wisdom is worthy of the highest honors. One of the nation's most esteemed judges, his opinions on civil rights cases have been the guideposts for desegregating schools, public facilities and the workplace.

Wisdom said this month of the award: "As I think about it now, I think there might have been some question, but nobody would seriously think that was being used to gain favor for West. Nor did it make a difference Any judge worth his salt wouldn't be influenced by MONDAY Legal publishers are battling over a share of the Judiciary's $2.7 billion annual budget and over policies that may determine the future of the industry. Some government employees making decisions on those issues received benefits from major contenders in the battles. U.S. Cods the fact that it was West Publishing Company." Wisdom added that "there wasn't any thought in the mind of anybody" that he should disqualify himself from the Texas vs.

West case. Judge Will Garwood of Austin, Texas, who wrote the circuit court opinion, said it is "silly" to think Wisdom might have been influenced by the award, that "it does not raise a shadow of a question." But Jeffrey Shaman, an expert on judicial ethics at DePaul University in Chicago, said "at a minimum, the judge should have disclosed this receipt of $15,000 and given parties in the case an opportunity to make a motion for his disqualification." And for Nelson, a special trust was violated. "It's incredible," she said upon hearing of the award and trips from the Star Tribune. "It's very disappointing." The integrity of the courts is compromised when judges have accepted benefits from one party in a case or a petition they are considering, she said. "It sets up a conflict, clearly a conflict," she said.

Asked whether giving benefits to judges might make West's opponents in court feel uneasy, the company's spokeswoman issued a written response: "Apparently, in the Star Tribune's odd view, litigants are to act in ways that take into account the 'feelings' of their oppo nents. This strikes us as a completely unrealistic standard. We question whether the Star Tribune directs its litigation counsel to bear in mind the 'feelings' of its opponents, such as unease by Star Tribune litigation opponents that the Star Tribune may be a news source providing a supposedly impartial report on the litigation. We suspect not." Texas contracted with West to print the state's laws in 1941. The dispute started when another publisher, Bancroft-Whitney tried to market an electronic version of the laws in 1985 using the arrangements West had printed.

West claimed copyright and the Texas' attorney general at the time, Jim Mattox, objected, saying the state should have control over its own laws. West didn't claim it owned the actual words in the laws. But it said it had rights to the arrangement, numbers and titles of the various sections. The state maintained that the laws are inaccessible without those elements, that West in essence controlled the "gates" to the law. The concern was that consumers and taxpayers ultimately would be hurt if one company was allowed to hold such control, Nelson said.

"When there is no competition, prices are artificially high," she said. A District Court judge dismissed the state's case without directly addressing the issue of access to public law. Texas wasn't planning to publish the laws commercially and therefore didn't have an "actual controversy" with West, he said. The appeals court judges agreed. Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

to "The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience?" John Marshall Fourth Chief Justice of the Supreme Court There's a rising chorus of critics charging that West Publishing enjoys a de facto monopoly on federal case law that keeps costs for legal information high and competitors out of the market. It's come down to a debate over who owns the law, and West outlines its perspective on this and other issues. Ethics experts and others make suggestions to address a general lack of scrunity, clear standards and oversight of the judiciary. 'i i il '6 '3 I 0 'S fl c' emit Award is prestigious and unusual Close involvement of corporate sponsor sets it apart backed its meetings onto a bar association conference or arranged for a low-budget get-together.

Devitt's papers show three occa-" sions when he alerted regarding West competitors. In1s 1988, for example, a court official circulated a memo telling court Li L. lr brarians that government contracts-. members. West's executives played host to the committee members at expensive resorts and hotels, attending to the entertainment and comfort of the judges and their spouses.

Ethics experts said West would have been better advised to donate funds for the award and separate the company from the award and the selection process. Steven Lubet, a law professor at Northwestern University, suggests I The award was created in 1982 to recognize outstanding federal judges. I A three-member panel, usually made up of a Supreme Court justice, a U.S. Court of Appeals judge and a U.S. district judge, selects the recipient.

Judge Devitt chaired the panel until he died in 1992. The winner receives $15,000 and a crystal obelisk. r7 i 'si "They meet in our living room here," said Bonnie Sashin of the Boston Bar Association, which sponsors the Haskell Cohn Distinguished Judicial Service Award. "We buy them each a muffin worth maybe a dollar each and maybe we will give them coffee." By contrast, one judge reported that his transportation, food and lodging for a Devitt selection-committee meeting cost $7,700. Until his death in 1992, Devitt invited the other members who were to serve with him on the selection committees.

It was possible for Devitt to recruit the nation's most prestigious judges. After nearly 30 years on the federal bench, he had friends on the Supreme Court and throughout the federal judiciary. He was chief judge of the Minnesota District from 1957 to 1981 and he continued to hear cases as a senior judge through the 1980s. Devitt was the perfect catalyst for the sociable quality that was to characterize the committee meetings. Gregarious and courtly, he enjoyed playing golf and traveling.

News clippings and his own correspondence, show that he was a favorite among many other judges. The correspondence shows that Devitt and Dwight Opperman, now CEO and chairman of the board at West, were close friends. They often traveled together, sometimes visiting the nation's highest offices. On March 13, 1984, Devitt wrote to required them to do more of their computer-assisted legal research on a system that competes with West. Devitt's correspondence indicates that he sent a copy to Opperman.

Each year, West put out the call for nominations for the award that was named after Devitt and the nation's most esteemed judges and legal scholars submitted nominations. Nominations were to be sent to a West post office box. But at least one nominator bypassed that formality and went directly to Opperman. Devitt's papers include a copy of a letter then-Chief Justice Warren Burger sent to Opperman in 1984 to submit a nomination. And, on at least one occasion, Opperman was consulted on naming the selection committee and on the pool of nominees.

Devitt's papers also include a June 22, 1989, draft letter to Opperman saying, in part: "As we figured out in our conversation, the Sixth and Tenth Circuits are the only ones which have not had a recipient or a panel member. After we figure out the next appointee from the Supreme Court (I think we agreed that John Paul Stevens would logically be the next one), we might settle on a name from the five circuit judges listed above." Devitt usually corresponded with the selection-committee members to set up meetings to consider the nominations, indicating that Opperman was handling the details and It was to be the Nobel Prize for the federal judiciary, an award named for Edward Devitt, longtime chief judge of the federal courts in Minnesota. Originally $10,000 and later $15,000, it was created by West Publishing Co. in 1982. And recipients chosen over the years have been worthy of honor.

They include judges who have shown courage in handling civil rights matters and creativity in improving the administration of justice. Several recipients did not accept the company's check: "I don't like to take anything of value from anybody," said Senior Judge Jack Weinstein of the Eastern District of New York, who asked West to donate the money to charity when he received the award in 1994. The award complies with all laws and ethics codes, but the close involvement of its corporate sponsor makes it unusual among commendations given to judges. And it has raised questions with some judicial ethics experts. In a letter to the Star Tribune, a West official defended the award program.

"Our sponsorship of and involvement in the Devitt Award have been fully open and public from the outset," said spokeswoman Ruth Stanoch. "Nominations can be made by anyone, and the recipient is selected by an independent panel comprised of a U.S. Supreme Court Justice, a U.S. Court of Appeals Judge and a U.S. District court judge.

We do not select the recipient Although West didn't choose the Devitt winners, the company was directly involved in every other part of the selection and award process, according to Devitt's papers, which are on file at the Minnesota Historical Society. As a result, the arrangement made West a benefactor to federal judges, whether they were winners or selection-committee Elected municipal judge in East Grand Forks, in 1935, right out of University of North Dakota Law School. Devitt passed the bar exam while serving in that post. a Elected to Congress from Ramsey County in 1946; lost his seat to Eugene McCarthy in 1948. 9 Became chief U.S.

district judge from Minnesota In 1957. Coauthor of the three-volume "Federal Jury Practice," published by West, which sets the basic rules of how federal trial courts are to be run. 9 Presided over many high-profile trials including the 1961 racketeering trial of Minneapolis gangster Isadore (Kid Cann) Blumenfeld, the 1963 fraud trial of former Minneapolis Mayor Marvin Kline, and the Reserve Mining Co. environmental trial in the 1970s. After sitting on the federal bench for 38 years, Devitt died in St.

Paul in 1992, at age 80. an endowment, such as awards offered by law firms wishing to give money to a law school to pay for a visiting lecturer. "The donor that pays for it is a law firm," he said. "But the law school runs the program completely and there is a complete separation from the firm. Once the money is donated, it becomes the law school's to spend." West is not alone in providing recognition for the judiciary.

The company provided the Star Tribune with the names of 21 other award programs that have honored judges. But the Devitt award stands out from the others. The Star Tribune was able to contact 19 of the organizations responsible for the awards on West's list and found they are bar associations, a university or professional organization. Some of the awards are privately funded; however, the funding went through professional organizations. For example, West and one of its competitors, LEXIS-NEXIS, each endow an award through the American Inns of Court Foundation.

LEXIS officials said that they have a policy forbidding directly providing travel or lodging to judges. None of the other award programs had a budget that exceeded $5,000 a year, including prizes and administrative costs. And typically the committee that selected the winners conferred by telephone, piggy William Webster, then director of the FBI: "Just a note to thank you for your warm hospitality last week. You received Dwight Opperman and myself with your usual generous courtesy." expenses. But Opperman often stepped into the chain of correspondence, writing the panelists to remind them West expected them to fly first class or to invite them for extra.