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Three federal appellate court judges violated judicial ethics
by serving on the board of an environmental research and advocacy
group partly financed by the energy industry and conservative
foundations, according to a report issued yesterday by a public
interest law firm that often defends environmental regulations.
The firm, Community Rights Counsel of Washington, said it
would file ethics complaints against the judges today, and
it provided news groups with advance copies of the complaints,
which are to be filed with the courts of the three judges.
The judges serve on the board of the Foundation for Research
on Economics and the Environment, which says it supports sensible
environmental regulation informed by cost-benefit analysis
and respect for property rights. Critics maintain that the
foundation is opposed to most environmental regulations.
The foundation, known as FREE, has attracted attention for
paying the expenses of federal judges who attend seminars
it sponsors at resorts in Montana and elsewhere.
Judge Jane R. Roth, who sits on the United States Court of
Appeals for the Third Circuit, in Philadelphia, and is one
of those cited in the report, said her service was appropriate.
"My participation on the board has convinced me,"
Judge Roth said, "that this is not a partisan organization
but a foundation very interested in presenting pertinent information."
Judge Danny J. Boggs, the chief judge of the United States
Court of Appeals for the Sixth Circuit, in Cincinnati, who
was also cited, compared his service to serving on a bar association
or university group that sponsors judicial seminars.
Judge Douglas H. Ginsburg, the chief judge of the United States
Court of Appeals for the District of Columbia Circuit, the
third person named in the report, did not respond to a detailed
message seeking comment. Judges Boggs and Ginsburg were appointed
by President Ronald Reagan; Judge Roth was appointed by the
first President George Bush.
Experts in judicial ethics questioned the judges' membership
on the foundation's board.
"A judge should not sit on the board of a group like
FREE or any other group with a strident ideological profile
on issues of a kind that come before the court," said
Stephen Gillers, vice dean of the New York University School
of Law.
John A. Baden, the foundation's chairman, said the group was
nonpartisan. He added that its board members were not compensated
and that judges on the board did not participate in fund-raising.
"We look for people whose interests coincide with ours,
which are the promotion of the conjunction of environmental
quality, responsible liberty and modest prosperity,"
Mr. Baden said.
The Code of Conduct for United States Judges allows judges
to "participate in civic and charitable activities that
do not reflect adversely upon the judge's impartiality."
Monroe H. Freedman, a law professor at Hofstra University,
said service on the foundation's board was hard to square
with the code.
"It is improper for a judge to sit on the FREE board,"
Professor Freedman said. "It's an advocacy group. If
he's on the board, he's got a fiduciary obligation to serve
their interest. That's inconsistent with his judicial obligations."
About 5 percent of all federal judges attend a FREE seminar
each year, the foundation said. The report estimated the cost
of each trip at $10,000. Mr. Baden disputed that, saying that
the average travel and lodging expense per judge last year
was about $1,300 and that judges paid for their own recreational
activities.
The report also criticizes a lawyer who briefly served on
the foundation's board. That lawyer, Edward W. Warren, of
the Washington office of Kirkland & Ellis, joined the
board while an important environmental case in which he was
lead counsel for an industry group was pending in the federal
appeals court in Washington.
Mr. Warren resigned soon after a panel of the court ruled
in his favor, in May 1999, in a 2-to-1 decision joined by
Judge Ginsburg. The full appeals court declined to rehear
the case that fall, and the Supreme Court unanimously reversed
the panel decision in 2001.
In a statement, Kirkland & Ellis said Mr. Warren attended
one meeting in July 1999, then resigned upon learning that
Judges Ginsburg and Boggs were on the board. Mr. Warren, the
statement read, "decided that it would be better if he
didn't serve on the FREE board because of perceived ethical
concerns."
Mr. Baden defended Mr. Warren's service with Judge Ginsburg,
saying: "I don't see anything unusual with them both
being on our board. To characterize them as somehow creatures
or captives of some special interests is insulting."
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