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A public interest law firm has accused three federal appeals
court judges of violating judicial ethics by serving on the
governing board of an industry-funded foundation that it claims
is opposed to most environmental regulations.
The firm, Community Rights Counsel, alleges that the judges'
service on the board of directors of the Foundation for Research
on Economics and the Environment undermines public trust in
the judiciary and reflects adversely on the judges' impartiality.
The complaints were filed March 23 against Douglas H. Ginsburg,
chief judge of the U.S. Court of Appeals for the District
of Columbia Circuit; Danny J. Boggs, chief judge of the 6th
U.S. Circuit Court of Appeals in Louisville, Ky.; and Jane
R. Roth, a judge on the 3rd U.S. Circuit Court of Appeals
in Wilmington, Del.
Judges Ginsburg and Roth did not return calls for comment.
Judge Boggs declined to comment on the allegations.
"As you know, they've filed a formal judicial complaint
against me, so I don't think any public comment is appropriate,"
he says. "I'll respond in the procedures stipulated for
[addressing such a complaint]."
At the same time, the Washington, D.C.-based Community Rights
Counsel also released a report that it contends shows how
FREE uses company-sponsored junkets to buy access to federal
judges who preside over important environmental cases involving
the companies' interests.
According to the report, FREE, whose funding comes almost
entirely from corporations and foundations that have a litigation
agenda in the federal courts, spends upwards of $10,000 per
trip per judge for judges to attend its seminars at Yellowstone
National Park-area dude ranches and resorts. Compounding the
problem, the report says, is the fact that FREE regularly
allows representatives of its corporate funders to lecture
federal judges at its seminars. To make matters even worse,
it says, FREE uses these seminars to advance the pecuniary
and ideological interests of its corporate sponsors.
"It's Judicial Ethics 101 that you can't serve on the
board of an organization that takes money from corporations
to influence the outcome of cases they have before your court,"
says CRC executive director Doug Kendall. "It's outrageous
that these junkets continue, and it's doubly outrageous that
federal judges serve on the junketing program's board."
But John Baden, the founder and chairman of FREE, says his
organization has a long and respected history of trying to
promote sound environmental policy. "We show how economics
and risk analysis can promote environmental quality via science,
innovation and entrepreneurship," he says.
Baden says he hasn't read CRC's report, but he claims the
group has been attacking FREE for years through a campaign
built on a combination of distortions, half-truths, insinuations
and outright lies. "They started this in 1998, and they
haven't gotten any more intelligent, honest or diligent in
the years since," he says.
Kendall responds that his group sent the report to FREE by
express delivery more than two weeks ago. "He should
read it, and when he does, he'll see that every fact in the
report is amply documented by original source material, all
of which is available for public inspection," he says.
Baden also says he sees nothing wrong with federal judges
serving on FREE's governing board. He says the group is no
more ideological than a university, civic group or conservation
organization on whose boards judges generally are allowed
to sit. He also says that FREE's seminars feature leading
experts in various fields who represent a broad range of political
views.
"I'm very proud to have some of the most distinguished
legal minds in America want to serve on the board," he
says. "They don't get any better than these people."
However, Hofstra University law professor Monroe Freedman,
who teaches legal ethics, says federal judges have no business
serving on FREE's governing board.
The problem is that FREE is an advocacy group that takes a
particular side in matters that are litigated with some regularity
before the D.C. Circuit and other courts, Freedman says. FREE
also is funded by companies that appear in those cases, and
those companies provide support for advocacy groups that actually
litigate before the courts as well.
"It is improper for a federal judge to be a fiduciary
of an organization that plays that kind of advocacy role,"
Freedman says. "Among other things, it puts the judge
in a position of having to recuse him- or herself in cases
involving issues that are advocated by the organization."
Freedman says he is also troubled by the opportunity for ex
parte advocacy such a relationship creates in particular cases
that may come before the courts.
"I'm not opposed to judges attending seminars except
in situations where there is a potential for ex parte advocacy
in impending or pending cases," he says. "But I
see a big difference between being a member of the board,
which means being a fiduciary, and simply attending a seminar."
Another expert on legal ethics, New York University law professor
Stephen Gillers, also questions the propriety of the judges'
membership on the foundation's board.
Gillers says any judge can attend a free seminar, no matter
how balanced or unbalanced it may be. And under current rules,
any judge can accept reimbursement of his or her expenses
for attending such a seminar as long as he or she discloses
it on his or her financial disclosure forms.
But Gillers says no judge should serve on the board of an
organization like FREE with a decidedly public profile on
categories of issues that routinely come before the courts.
"In my view, a judge should not provide the prestige
of his or her judicial office to an ideological organization,
whether pro- or anti-regulation, by sitting on its board,"
he says.
Interestingly enough, the CRC has not filed an ethics complaint
against U.S. District Judge Andre M. Davis of Baltimore, who
was elected to FREE's governing board last fall and plans
to attend his first meeting in May. But Kendall says that's
only because the CRC didn't know that Davis was a member of
the board at the time the other complaints were filed.
"The argument is the same for every judge who serves
on the board," Kendall says. "We don't think they
should."
But Davis, who says he considers himself an "eagle"
when it comes to ethics, says he doesn't see anything improper
or unethical about his service on the board.
"I haven't read [CRC's] report, but I don't understand
how it can be appropriate to attend [FREE's] seminars on the
one hand and inappropriate to serve on the board on the other
hand," he says.
Davis, who chairs the National Conference of Federal Trial
Judges and serves on the judges' advisory committee to the
ABA's Standing Committee on Ethics and Professional Responsibility,
says he has attended a number of FREE's seminars and has found
them to be excellent.
"They have enriched my knowledge about legal doctrine,"
he says.
©2004 ABA Journal
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