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The chief judge of Washington's federal appeals court and
two other appellate judges have violated judicial ethics by
serving on the board of an industry funded foundation that
has opposed environmental regulations, and by presiding over
cases in which the organization's members have a stake, a
public interest group charged yesterday. The Community Rights
Counsel (CRC) called on Judge Douglas H. Ginsburg, chief of
the U.S. Court of Appeals for the D.C. Circuit, and Judges
Danny J. Boggs of Kentucky and Jane Roth of Philadelphia to
resign their seats on the board of the Foundation for Research
in Economics and Environment (FREE) to avoid the appearance
of bias.
CRC also released a report yesterday contending that FREE,
which is based in Bozeman, Mont., has engaged in a wide scale
campaign over the past five years to buy access to judges
who hear environmental cases that are financially important
to its corporate funders. Among FREE's corporate backers are
Texaco Inc., Exxon Mobil Corp., General Electric Co., Monsanto
Co. and Shell Oil Co.
According to copies of tax records in the report, FREE pays
for seminars for judges at a cost of about $10,000 each to
visit resorts in the area around Yellowstone National Park
and sets aside a sizable portion of the four day sessions
for fly fishing, golfing and horseback riding. About 5 percent
of the 792 active members of the federal bench attend a FREE
trip each year, the group said.
"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,"
said 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."
Ginsburg, Boggs and Roth all declined to comment yesterday.
John Baden, chairman of FREE, called CRC's accusations "flat
wrong." He said he could not speak for the judges but
said his group is no more ideological than a university, civic
group or conservation organization whose boards' judges are
generally allowed to join.
He said that his group has a long and respected history
of trying to promote "sound environmental policy,"
and that seminars feature leading experts in their fields
who offer a broad range of political viewpoints.
CRC's investigative report, titled "Tainted Justice,"
noted that Ginsburg and two colleagues on the U.S. Court of
Appeals, David B. Sentelle and senior judge Stephen F. Williams,
attended FREE seminars while a lawsuit against federal soot
and smog regulations was pending before their court in 1998.
Those trips were first reported by The Washington Post six
years ago.
Yesterday's report revealed, however, that while that case,
American Trucking Associations v. EPA, was pending,
the attorney who argued against the regulations on behalf
of corporate interests had unusual access to the D.C.
Circuit judges hearing the case. He was invited to be a FREE
board member in 1998 and lectured at a seminar attended by
Sentelle, the report said. A FREE official said yesterday
that the lawyer, Edward W. Warren, recognized there was a
potential ethical conflict and resigned from FREE's board
after a year.
Sentelle and Williams also declined to comment yesterday.
The report also said that Boggs, of the U.S. Court of Appeals
for the 6th Circuit, sat on FREE's board while he heard a
case involving Cordova Chemical Co., which featured arguments
made by companies that fund FREE. Roth, of the U.S. Court
of Appeals for the 3rd Circuit, presided over a case involving
another chemical company, in which groups that give FREE money
filed a friend of the court brief. She subsequently joined
FREE's board.
The CRC report comes days after Supreme Court Justice Antonin
Scalia defended his decision not to recuse himself from a
case in which Vice President Cheney is seeking to keep secret
the deliberations of an energy task force he chaired. Scalia
has acknowledged going duck hunting with Cheney but said there
is a long history of Supreme Court justices having social
interaction with presidents and vice presidents.
A professor of legal ethics said judges' serving on the
board of FREE a group with a "decided ideological profile"
is "not defensible" and "even more serious"
than the ethical question that Scalia faces.
"Scalia's trip is a single event, affecting a single
case," said Stephen Gillers, a New York University law
school professor. "Judge Ginsburg's membership is improper,
and it compromises the public's view of the impartiality of
panels on which he sits in every case of interest to FREE's
members. The consequences of this are much broader."
The appearance of judicial conflict, according to Kendall,
is not limited to the D.C. Circuit. Vanessa Gilmore, a federal
judge in the Southern District of Texas, attended a trip funded
by FREE while she presided over a case seeking several hundred
million dollars in civil fines against Koch Industries Inc.,
a petroleum, chemical and plastics manufacturer based in Wichita,
for hundreds of oil spills in six states, according to the
report. Gilmore ultimately accepted a consent decree that
required payment of a fraction of the fines sought by the
government
Judge Jed Rakoff of the Southern District of New York attended
a seminar paid for by FREE where a former chief executive
officer of Texaco gave a lecture titled "The Environment:
Some Thoughts from the Corner Office," the report said.
A $1 billion tort case accusing Texaco of destroying Ecuadoran
rain forest was remanded to Rakoff's courtroom shortly after
the seminar.
Some judges have publicly lashed out at criticism of them
for attending the seminars. Judge A. Raymond Randolph of the
D.C. Circuit wrote that making ethics calls requires good
judgment, which judges are presumed to have. "Kendall's
real complaint is not with ethics (but) with the content and
viewpoint of the seminars," he wrote.
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