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January 30, 2008
The Honorable Gordon J. Quist
U.S. District Court, Western Dist. of Michigan
482 Federal Building
110 Michigan St., NW
Grand Rapids, MI 49503
Dear Judge Quist:
I am writing you to ask that the Judicial Conference’s Committee on Codes of Conduct publicly release its formal opinion on Judge Andre Davis’s participation on the board of directors of Foundation for Research on Economics and the Environment (FREE).
As you know, there has been growing public concern about privately-sponsored trips for federal judges. FREE, which takes money from corporations and sponsors federal judges on expense-paid trips to western resorts, is a particularly problematic example of this phenomenon in part because FREE’s corporate funders regularly appear before federal judges. These expense-paid trips have been condemned by ethics experts, current and former federal judges, members of Congress and the editorial pages of over 50 newspapers from across the country and the political spectrum. Indeed, Chief Justice Roberts has stated publicly and pointedly in response to a question about FREE’s operation that it is “clear that special interests should not be allowed to lobby federal judges.”
The public deserves to see this Committee’s opinion for at least three reasons: First, Judge Davis stated in open court in June 2007 that the Committee worked “very conscientiously” on a “very carefully drafted” opinion evaluating information from Judge Davis and information on FREE’s website and concluded that there is “tension” (as he put it) between the judiciary’s ethics canons and membership on FREE’s board. Judge Davis stated that he resigned from the Board “as soon as [he] got that opinion.” I have enclosed a transcript of Judge Davis’ remarks. In making these statements in court about the existence and substance of the opinion, Judge Davis has effectively waived any confidentiality concerns (assuming for the moment that such concerns properly attached in the first place). Any remaining concerns about respecting Davis’s privacy (if there are any) are surely outweighed by the need for other judges, and the public, to evaluate the Committee’s “very carefully drafted” opinion on a critical matter of judicial ethics that is of intense public interest and concern.
Second, this was no ordinary Committee opinion. It was not sought by Judge Davis as part of an internal struggle to determine the correct ethical course. Rather, Chief Judge William Wilkins, the Fourth Circuit judge assigned to review an ethics petition filed by Community Rights Counsel, instructed Judge Davis to seek the Committee’s opinion. CRC’s petition asked for either (1) Judge Davis to voluntarily resign from FREE’s Board or (2) an opinion declaring that service on FREE’s Board was inconsistent with rules of judicial ethics. By his own account, Judge Davis did not resign voluntarily (at least at first): he defended his conduct to Chief Judge Wilkins and resigned only after the Committee had issued its formal opinion. Thus, CRC’s petition was resolved at least in part because of the Committee’s opinion declaring that service on FREE’s Board was inconsistent with judicial ethics. The basis for resolving CRC’s misconduct petition cannot be considered confidential, but that is precisely what has been withheld to date from CRC and the public.
The last two lines of CRC’s Petition asked Chief Judge Wilkins to begin healing the damage that FREE’s trips were doing to the judiciary’s reputation:
The judiciary must take steps to contain the damage that FREE’s operations are doing to its reputation. The necessary first step is for this Judicial Council to rule that Judge Davis may not with propriety serve on FREE’s Board of Directors.
Chief Judge Wilkins started a process that led to just such a ruling from this Committee, but then said nothing about this ruling in dismissing CRC’s petition. Chief Judge Wilkins dismissed CRC’s complaint, asserting that “action on the complaint is no longer necessary” even as he failed to reveal the Committee’s judgment about the propriety of judicial service on FREE’s board, a judgment that CRC requested and that solved the ethical problem raised in our petition. This Committee, Chief Judge Wilkins and Judge Davis stayed quiet about this ruling even when Sixth Circuit Chief Judge Danny Boggs refused to resign from FREE’s board.
Third, releasing the Committee’s opinion would help address an important public misperception created by the way the reviewing judicial councils handled CRC’s ethics petitions. Chief Judge Wilkins’ decision not to make public the existence of this Committee’s opinion – and Judge Davis’s refusal to comment at the time of his resignation – had significant consequences. Judge Davis’s resignation from FREE’s board was portrayed to reporters and the public as entirely voluntary. In resigning from FREE’s board the next day, Judge Douglas Ginsburg, the Chief Judge of the DC Circuit, released a statement asserting that he was resigning “reluctantly” because he could no longer “constantly be correcting the false impressions and calumnies that appear in the press,” while never mentioning the Committee’s opinion counseling against service on FREE’s board.
One of Judge Davis’s colleagues, Sixth Circuit Chief Judge Danny Boggs, chose not to resign from FREE’s board, awaiting the ruling of the judicial council assigned to his petition. In June 2005, Chief Judge James Loken of the U.S. Court of Appeals for the Eighth Circuit (sitting by designation) dismissed the petition against Judge Boggs, finding no action was necessary. Oddly, Judge Loken’s opinion does not cite this Committee’s formal opinion to Judge Davis, even though the opinion addresses a very similar issue to the one he was being asked to decide. Instead, Chief Judge Loken quotes extensively from an opinion apparently provided by the Committee to Judge Boggs when he joined FREE’s board in the early 1990s. Chief Judge Loken’s opinion leaves the unmistakable impression that this Committee agreed with his conclusion that there is no ethical problem with judges serving on FREE’s board, when in fact, according to Judge Davis, the Committee reached a very different conclusion.
Was Judge Chief Loken provided with this Committee’s opinion? If so, when? Those are important questions because, not surprisingly, Judge Chief Judge Loken’s opinion was viewed as a green light for judges to serve on FREE’s board and for judges to attend FREE’s trips. Indeed, the Wall Street Journal editorial page said that Chief Judge Loken’s ruling was a “vindication” for Judge Boggs and a “victory . . . shared by all federal judges who attend privately funded judicial seminars.” As a result, another prominent federal judge, Judge Edith Brown Clement recently joined FREE’s board and FREE’s trips are apparently as popular as ever.
Given Judge Boggs’s continued membership on FREE’s board, as well as the recent addition of Judge Edith Brown Clement, the matter continues to fuel public concern. The public deserves and needs the benefit of this Committee’s careful deliberations in response to Judge Davis’s request for an opinion.
In his January 2008 year end report, Chief Justice Roberts issued a ringing call for more vigilance by the Judiciary in its handling of judicial misconduct petitions:
History and human nature teach that the Judiciary must be continually vigilant in maintaining the high standards of judicial office. When entertaining a complaint about a judge, the Judiciary must apply the same qualities of reason, impartiality, and wisdom that epitomize the judicial process. The Judiciary cannot tolerate misconduct. The public rightly expects the Judiciary to be fair but firm in policing its own.
Chief Justice Roberts’ standards were not met in the case of the ethics petitions CRC filed against Judge Davis, Chief Judge Boggs and the other judicial members of FREE’s Board because this Committee’s judgment on the matter was never made public. Accordingly, I ask that you release a copy of the Committee’s formal opinion. Thank you for your consideration. I look forward to your response.
Sincerely yours,
Douglas T. Kendall
Executive Director
Enclosure
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