While federal judges across the nation are going on more and more "questionable" subsidized trips, the number taken by their New Jersey colleagues is dropping a tad, according to a watchdog group.
In a report released April 28, the Community Rights Counsel notes a 60 percent increase in judges' trips funded by three "anti-regulatory" organizations between 1992-1994 and 2002-2004, the latest federal judge financial disclosure data available.
In contrast, the number of such trips by U.S. judges in New Jersey fell from seven to five. That decrease is reflected in the district's lower ranking - to 32nd place among 94 districts - with an average of .29 trips, for 2002-2004. (For the full 13-year period, New Jersey has the nation's 17th-highest average number of trips per active judgeship - two.)
The three funding organizations, whose programs, CRC contends, espouse a free-market philosophy that is influencing judicial attitudes and decisions, are the Foundation for Research on Economics and the Environment (FREE), George Mason University Law School's Law and Economics Center (LEC) and the Liberty Fund.
Most of the roughly two dozen New Jersey district judges in 2004 did not attend any FREE, LEC or Liberty Fund events. They limited themselves to judicial conferences, bar meetings and other less controversial activities or didn't travel at all on someone else's tab.
But 10 New Jersey federal judges reported a total of 34 multiday junkets paid for by FREE, LEC or the Liberty Fund between 1992 to 2004.
They included Harold Ackerman, who made the CRC's list of "Top Junketing Judges" for 1999 to 2004. FREE or LEC paid for seven trips he took during that period, tying him for 10th place, along with nine other judges.
Three of Ackerman's junkets were to FREE programs and four to those put on by LEC. Going back to 1993, the database shows four more trips, two paid for by each, for a total of 11. The FREE seminars were held in Big Sky, Mont. The foundation is based in Bozeman and coordinates its seminars with Montana State University. The LEC locales included Santa Fe, N.M., La Jolla, Calif., and Hilton Head, S.C.
Ackerman declines to comment.
The nine other district judges besides Ackerman who accepted invitations from FREE and LEC were Chief Judge Garrett Brown Jr. and Alfred Lechner Jr., who each had five trips during the 13-year period; William Walls, with three; William Bassler, John Lifland and Alfred Wolin, with two each; and Stanley Chesler, Joseph Irenas and Anne Thompson, with one apiece. Lechner also attended a Liberty Fund event in 1993.
The other top-10 junketing judges were from outside the Third Circuit, led by Judge Loren Smith of the Federal Court of Claims, who took 14 trips from 1999 to 2004.
'Hardly a Boondoogle'
All the judges still sitting declined comment or did not return calls, but two who retired in recent years spoke out about the trips and had markedly opposing views on them.
Wolin, who left the bench in 2004 after 17 years, reported taking a total of two dozen trips, funded by a wide range of organizations, between 1992 and 2004, including a FREE seminar in 1996 and another in 1998.
He calls the criticism of the trips "unwarranted" and the programs "hardly a boondoggle" and "one of the better courses I went to in the judiciary."
One seminar was held at a hotel and the other at a dude ranch, where horseback riding and fishing were among the afternoon options. But "it was not just judges playing around in the West." Wolin describes a serious academic regimen conducted in a far from luxurious setting. There were a thousand pages of reading assigned and seven hours of class a day, he recalls. "I slept in a bunk room with four other judges on double decker beds," says Wolin, now with Saiber Schlesinger Satz & Goldstein in Newark.
The agenda for one seminar covered such topics as the role of the environment in causing aging and cancer, taught by a University of California professor, and a session on science in the courts by a senior executive at Procter & Gamble, according to FREE's Web site.
"God help the judiciary in this country if any judge is so impressed by the lectures at FREE to so influence that judge that they're bereft of their good judgment," says Wolin. "People who make that argument don't have a very good view of the judiciary to think they would be influenced that way; I never was."
At the other end of the spectrum is Stephen Orlofsky, who left the bench after eight years in 2003 and is now with Blank Rome in Cherry Hill. His disclosure forms show only one paid trip, to a Third Circuit judicial conference in Philadelphia.
Orlofsky got seminar invitations too, but turned them down based on what he says was his personal view that it was "inappropriate for me as a federal judge to accept that type of trip reimbursement."
"I made that decision and I stand by it," he adds. "Some of my former colleagues disagreed with it and they went."
Continuing legal education for judges is important but the problem with private funding is that "it just creates a perception in the public eye that influence can be purchased," says Orlofsky. "Everybody who goes will tell you they're not influenced and that may be true, but there is a perception of impropriety."
The problem was broader than FREE and LEC but he says "those are the two principal groups I recall."
Monroe Freedman, an ethics professor at Hofstra University Law School, takes a middle position. "It is inappropriate to censor what judges can listen to, just as it is inappropriate to censor what magazines or journals they can read," he says.
"On the other hand, there is a problem if a judge goes on one of these trips when there is litigation before her that involves representatives of parties who will be present at the lecture or helping to fund it," he says. "It gives the appearance of ex parte communications."
His view is not that judges should boycott the trips but that they "should be finding out who is providing financing for the George Mason trips and so on and recusing themselves where those persons are involved."
That could be difficult with regard to LEC which, unlike FREE, does not make its donors public.
LEC director Francis Buckley defends the nondisclosure, saying judges are less likely to be influenced by who funds a trip if they do not know the donors.
In any event, the negative attention on the issue has spurred the federal judiciary to take a fresh look at it.
The Judicial Conference's executive committee recently asked a seven-member subcommittee of the Committee on the Judicial Branch, chaired by Judge D. Brock Hornby of the Eastern District of Maine, to re-examine the issue.
The subcommittee will look at private educational programs for judges, financial disclosure requirements related to the programs and how to better identify possible conflicts of interest that require recusal, says Dick Carelli, a spokesman for the Administrative Office of the United States Courts.
LEC's Buckley has written to some alumni of its programs, including Ackerman, asking them to talk to members of the subcommittee about the program.
Buckley's five-page letter is apparently aimed at refuting critics, describing LEC's programs as "theoretical, not tendentious . . . philosophical, not political." The letter rejects as "perjorative" the label of "private" as applied to a program by a public law school, such as George Mason. It asserts the value of its programs and boasts of LEC's 30-year history and the Nobel and Pulitzer Prize winners who have served as faculty.
Buckley denies that the letter is meant to provide recipients with talking points and says it went only to some alumni like Ackerman, who he knows and considers a friend.
The current authority for judges on attending "independent" educational seminars is Advisory Opinion 67 from the judiciary's Committee on Codes of Conduct. The emphasis of a particular viewpoint or school of thought "does not necessarily preclude a judge from attending," but it could be improper based on such factors as whether the subject matter of a seminar is likely to come before the judge, says the opinion.