May 21, 2002
By Fax
The Honorable Russell D. Feingold
Committee on the Judiciary
506 Hart Senate Office Building
United States Senate
Washington DC 20510
Re: Nomination of Judge D. Brooks Smith
Dear Senator Feingold,
This letter is in response to your letter to me of May
9, 2002, requesting my opinion on ethical issues that have
arisen in connection with the nomination of United States
District Judge D. Brooks Smith to the United States Court
of Appeals for the Third Circuit. These issues relate to
(A) Membership in the Spruce Creek Rod and Gun Club; (B)
Attendance at Judicial Education Seminars; and (C) Judicial
Disqualification Requirements.
(A) Membership in the Spruce Creek Rod and Gun Club
I had originally concluded that Judge Smith's membership
in the Spruce Creek Rod and Gun Club was not a ground for
denying him a judgeship on the Court of Appeals. In reaching
that conclusion, I was relying in significant part on the
opinion expressed in the letter to Senator Orrin G. Hatch
of April 23, 2002 by Professor Ronald D. Rotunda, for whom
I have considerable respect. Subsequent research has convinced
me, however, that Professor Rotunda's analysis in this instance
is seriously flawed, that his conclusion is clearly wrong,
and that Judge Smith's membership in the Club is a serious
violation of his ethical responsibilities as a judge.
I was troubled from the outset, of course, that Judge Smith's
membership in the Rod and Gun Club violates the plain meaning
of Canon 2C of the Code of Conduct for United States Judges.
That provision forbids a judge to hold membership in an
organization that "practices invidious discrimination
on the basis of ... sex...." Since the bylaws of the
Rod and Gun Club arbitrarily restrict membership to men,
and since Judge Smith held membership in the Club for eleven
years while he was a federal judge, his violation of Canon
2C appears to be obvious.
Nevertheless, two aspects of Professor Rotunda's letter
persuaded me that this plain-meaning reading was not the
final word. First, I accepted Professor Rotunda's assertion
that the Club is a "purely social" organization
with no formal business or professional activities. In this
regard, Professor Rotunda may well have been misled by Judge
Smith himself, who has repeatedly mischaracterized the Club
to the Judiciary Committee as a "purely social group"
that does not conduct any business or professional activities.
In any event, I now understand that that crucial factual
premise is false, because professional meetings are in fact
held at the Rod and Gun Club.
Of equal importance to my original judgment is the fact
that I accepted Professor Rotunda's statement regarding
§2.14(b) of the Code of Conduct for United States Judges,
Compendium of Selected Opinions (2002). In Professor Rotunda's
words, that section holds that:
[T]he Masonic Order, which limits full membership to males,
does not practice 'invidious' sex discrimination because
it does 'not provide business or professional opportunities
to members.'
Frankly, I have difficulty with the notion that important
business and professional contacts are not made at a club
where business and professional men interact and bond with
each other and with important political figures and judges.
Moreover, I was troubled that this exception for the Masons
- as stated by Professor Rotunda - would effectively swallow
up the rule against discrimination on grounds of sex. Nevertheless,
for purposes of forming an opinion about Judge Smith's compliance
with the Code of Judicial Conduct, I accepted Professor
Rotunda's representation that such a distinction has been
made in the Compendium of Opinions.
However, the full summary of the opinion regarding the
Masons in §2.14(b) of the Compendium is not based simply
on the premise that the organization does not provide business
or professional opportunities to members (which is a factual
premise that, in any event, is inapplicable to the Rod and
Gun Club). Rather, the summary refers only once to the absence
of business or professional opportunities, but refers twice
to the religious purposes of the Masons. Compare, then,
the actual summary set forth in §2.14(b) with Professor
Rotunda's rendering of that summary, which is quoted supra:
Masonic Order, represented to be fraternal organization
devoted to charitable work with religious focus and not
providing business or professional opportunities to members,
is not consider to be an organization practicing invidious
discrimination although women are not permitted to be full-fledged
members. Organization is considered to be dedicated to the
preservation of religious and cultural values of legitimate
common interest to members. Commentary to Canon 2C.
Because of this reiteration in §2.14(b) to the Masons
as being "devoted" and "dedicated" to
the preservation of religious values through charitable
work, the exception for the Masons does not swallow up the
proscription of Canon 2C against discrimination on grounds
of sex. Instead, the Masons' exception becomes a limited
one that respects the First Amendment's guarantee of freedom
of religion.
Contrary to Professor Rotunda's abridged version of §2.14(b),
therefore, the full text of §2.14(b) does not support
the conclusion that the Spruce Creek Rod and Gun Club's
discrimination against women is permissible. Accordingly,
Judge Smith was clearly in violation of Canon 2C for most
of the eleven years that "dragged on" while Judge
Smith was on the bench and remained a member.
Finally, with respect to the specific questions that you
raised on this issue in your letter to me:
1. Judge Smith is incorrect in asserting that revisions
to Canon 2 of the Code of Conduct exempt clubs like Spruce
Creek from the ban on membership in discriminatory organizations.
Indeed, that assertion is fanciful, on a plain-meaning reading
of Canon 2C:
A judge should not hold membership in any organization
that practices invidious discrimination on the basis of
... sex....
Moreover, the exceptions in the Comment reinforce the conclusion
that the Rod and Gun Club falls within this plain language.
For example, the Comment exempts an organization that is
"dedicated to the preservation of religious, ethnic
or cultural values of legitimate common interest to its
members [like the Masons], or that is in fact and effect
an intimate, purely private organization whose membership
limitations could not be constitutionally prohibited."
Obviously, neither clause in that exception describes the
Spruce Creek Rod and Gun Club.
2. Judge Smith violated ethical standards by remaining a
member of the Spruce Creek Rod and Gun Club for eleven years
- or, at least, for most of those years - while serving
as a federal district judge. The 1998 Code reiterates the
language of the 1992 Code in allowing a judge a maximum
of two years to make immediate and continuous efforts to
change the club's policy before resigning. Since Judge Smith
claims to have made such efforts beginning in 1988, he should
have resigned at least by 1992, when he knew that four years
of efforts had already been unavailing.
3. If Judge Smith somehow believed after 1992 that he could
ethically remain a member of the Club (a conclusion that
is difficult to credit) he should at least have consulted
with the Advisory Committee on Judicial Conduct before continuing
his membership. Apart from that, having given his word to
the Judiciary Committee that he would resign from the Club
if it did not change its discriminatory bylaw, Judge Smith
should have informed the Committee of his intention to break
his word and his reasons for doing so.
(B) Attendance at Judicial Education Seminars
In answer to your specific question, Judge Smith is not
correct in asserting that under existing ethical standards,
he was not required to inquire into the identity of corporate
financial supporters of an organization like the Law and
Economics Center at George Mason University.
As noted in the Comment to Canon 2A, the appearance of
impropriety depends on the appearance to a reasonable person
who has "knowledge of all the relevant facts that a
reasonable inquiry would disclose." Thus, if a reasonable
inquiry would reveal the source of the funding, the source
of the funding is relevant to determining whether there
is an appearance of impropriety and, thereby, whether the
judge has committed a violation of the standard. In order
to conform his conduct to the rule, therefore, the judge
must at least make the same reasonable inquiry that the
hypothetical reasonable person would be making into the
source of the funds for the seminar.
It is important to address here Professor Rotunda's disparaging
comments on the appearance of impropriety as a standard
in judges' and lawyers' ethics. Professor Rotunda is correct
in saying that some authorities have rejected the appearance
of impropriety as a standard. That has come about, however,
for reasons that have nothing to do with the merits of the
standard. Moreover, the views of those authorities could
not overrule either the Due Process Clause of the Constitution
or the Code of Conduct for United States Judges.
In fact, the appearance of impropriety is central in judges'
and lawyers' ethics, and, specifically, in the Code of Conduct
for United States Judges. Moreover, a fundamental principle
of constitutional due process of law is that "any tribunal
permitted by law to try cases and controversies not only
must be unbiased but also must avoid even the appearance
of bias." That is, "to perform its high function
in the best way, justice must satisfy the appearance of
justice."
As recently as 1998, the Judicial Conference of the United
States reiterated its commitment to avoiding the appearance
of impropriety on the part of judges. As stated in the Comment
to Canon 2A:
Public confidence in the judiciary is eroded by irresponsible
or improper conduct by judges. A judge must avoid all impropriety
and the appearance of impropriety. A 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.
The prohibition against behaving with impropriety or the
appearance of impropriety applies to both the professional
and personal conduct of a judge. Because it is not practicable
to list all prohibited acts, the proscription is necessarily
cast in general terms that extend to conduct by judges that
is harmful although not specifically mentioned in the Code.
Then, directly addressing Professor Rotunda's complaint
that the appearance of impropriety is "too vague to
be a standard," the Comment explains precisely what
is meant by the standard of an appearance of impropriety:
Actual improprieties under this standard include violations
of law, court rules or other specific provisions of this
Code. The test for appearance of impropriety is whether
the conduct would create in reasonable minds, with knowledge
of all the relevant circumstances that a reasonable inquiry
would disclose, a perception that the judge's ability to
carry out judicial responsibilities with integrity, impartiality,
and competence is impaired.
Thus, the Code tells us, in part, that an appearance of
impropriety is one that would cause a reasonable person,
with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, to believe that the judge
has violated a specific provision of the Code, or has violated
the law, or has violated court rules, in such a way that
impairs the judge's impartiality.
Consistent with that definition, the appearance of impropriety
with regard to the judicial seminars is the appearance that
a party is buying special access to the judge, both by financing
an expert to express ex parte opinions to the judge, and
by making a gift to the judge to induce the judge to pay
special attention to the expert's ex parte opinion. Thus,
Judge Smith's conduct violates Canons 2, 2B, and 6, and
appears to violate Canon 3A(4), as explained below.
As a general matter, there is nothing in the Code of Conduct
for United States Judges that would forbid a judge from
attending a privately-sponsored judicial seminar. Also as
a general matter, there is no limitation - nor should there
be - on the ways in which judges engage in continuing legal
education.
However, a specific rule of critical importance is Canon
3A(4), which forbids a judge to consider "ex parte
communications on the merits ... of a pending or impending
proceeding." This rule goes so far as to forbid a judge
to receive the ex parte advice even of a "disinterested
expert" on the law applicable to a proceeding before
the judge, unless the judge gives notice to the parties
of the person consulted and the substance of the advice,
and affords the parties reasonable opportunity to respond.
Also relevant is Canon 6, which provides that a judge may
not receive reimbursement of expenses to judicial seminars
"if the source of such payment ... give[s] the appearance
of influencing the judge in the judge's judicial duties
or otherwise give[s] the appearance of impropriety.".
I understand that Judge Smith has attended seminars in
which experts addressed legal issues that appeared to be
the same as the issues that were presented in matters that
were then before him. In addition, it is entirely possible
that one or more of the speakers discussed those issues
in informal contacts with the judge at those seminars.
Your letter refers, for example, to Gerber v. Medtronic,
Inc. This was a products liability case that Judge Smith
was adjudicating when he attended a seminar at Hilton Head.
At the seminar, experts discussed "Risk, Injury, and
Liability." In the Center's words, this seminar "demonstrates
the superiority of a legal system that assigns liability
to those best able to avoid injury over a system that seeks
only to spread losses by assigning them to the 'deepest
pockets.'" Also, one of the lecturers at the seminar
published a paper the same year arguing for federal preemption
of state tort claims involving pharmaceuticals subject to
federal regulation.
Upon returning home, Judge Smith granted summary judgment
in favor of Medtronic - the party that had provided financial
support to the Law and Economics Center, which had sponsored
the seminar. The ground for Judge Smith's decision was federal
preemption of the state tort claims.
On those facts, there is an appearance that Judge Smith
violated Canon 3A(4) by receiving ex parte communications
on issues then before him in the Medtronic case.
Under the language of Canon 3A(4), of course, it is irrelevant
whether the seminars were funded by a party appearing before
the judge. However, the fact that a party before the judge
was providing financial support for a seminar at an expensive
resort, the fact that the judge stayed at the resort without
cost, and the fact that the expert's ex parte presentation
was also financed in part by the party, would all heighten
the appearance of impropriety. Specifically, the appearance
is that the party is buying special access to the judge,
both by making a gift to the judge and by financing an ex
parte communication by an expert.
In addition, Judge Smith's attendance at the seminar violated
Canon 6 because of the source of the reimbursement of the
judge's expenses "give[s] the appearance of influencing
the judge in the judge's judicial duties or otherwise give[s]
the appearance of impropriety."
(C) Judicial Disqualification Requirements
Your final question to me is whether there is anything
in Judge Smith's answers to your written questions that
changes the opinion in my letter to the Committee of March
14, 2002 (which I adopt here by reference).
The answer is no. Judge Smith's written answers, like his
testimony before the Committee, consist of obfuscation and
disingenuousness. In addition, those answers confirm the
conclusion stated in my earlier letter that Judge Smith
has committed repeated and egregious violations of judicial
ethics; that to this day he has failed to inform himself
of his obligations under the Federal Judicial Disqualification
Statute; and that he has been disingenuous before this Committee
in defending his unethical conduct.
For example, in answer to your Question 7a, Judge Smith
says:
Starting on October 27th, I began to develop concerns that
Mid-State's involvement in SEC v. Black might, in the future,
require it to play a more prominent evidentiary role in
the litigation. I may have told the Trustee and his lawyer
that I would consider recusing myself based on the potential
for a future appearance of impropriety....
In those two sentences, Judge Smith displays either an
ignorance of the nature of conflict of interest law or a
desire to confuse the issue with meaningless verbiage ("the
potential for a future appearance of impropriety").
First, all conflicts of interest are concerned with potentials
- that is, with the risk of substantive ethical violations
that might arise in the future. As explained by the RESTATEMENT
OF THE LAW GOVERNING LAWYERS, "conflict of interest"
refers to whether there is a "substantial risk"
that a substantive violation of one's ethical obligations
will arise in the future. (With regard to a judge, this
would refer, e.g., to the risk that the judge's impartiality
might come to be impaired in the course of the litigation.)
To be "substantial," the risk must be "more
than a mere possibility." However, it need not be "immediate,
actual, and apparent." On the contrary, as explained
in the comment to Restatement §121, a risk can be substantial,
within the meaning of the rule, even if it is "potential
or contingent," and despite the fact that it is neither
"certain or even probable" that it will occur.
The ultimate test is that there be a "significant and
plausible" risk of adverse effect on one's ethical
responsibilities.
When Judge Smith said, therefore, that on October 27th he
"began to develop concerns that Mid-State's involvement
in SEC v. Black might, in the future, require it to play
a more prominent evidentiary role in the litigation,"
he was acknowledging that he had a conflict of interest
that required him immediately to recuse himself. That is,
he was acknowledging that there was a "significant
and plausible risk" - even if it was not "certain
or even probable" - that he would find himself adjudicating
a case in which he had a substantial financial interest.
Moreover, Judge Smith reiterates that "Mid-State Bank
was not a party to the litigation before me." As a
Federal Judge for fourteen years, Judge Smith should be
familiar with the leading Supreme Court case of Liljeberg
v. Health Services Acquisition Corp. He should know, therefore,
that it is immaterial whether the Bank had been a party.
In Liljeberg, for example, Loyola University was not a party
and, indeed, the judge had forgotten that Loyola had any
possible interest in the outcome of the case. Nevertheless,
simply because the judge had been a trustee of Loyola, the
Supreme Court vacated the judgment under the Federal Disqualification
Statute (28 U.S.C. §455).
For all of the reasons in my earlier letter and in this
one, therefore, I continue to believe that Judge D. Brooks
Smith should not be honored with advancement to a distinguished
Federal Circuit Court.
Respectfully submitted,
Monroe H. Freedman
Lichtenstein Distinguished Professor
Of Legal Ethics
