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CRC In The News

 

Ethics Lapses by Federal Judges Persist, Review Finds

 

 

Joe Stephens
Washington Post Staff Writer
Tuesday, April 18, 2006; A17

A number of federal judges have violated ethics rules in recent years by presiding over lawsuits while having a financial conflict. Others have failed to disclose that they traveled to resorts on expense-paid trips.

Interviews and documents reviewed by The Washington Post identified about a dozen such ethical lapses in recent years.

One category of problems involves stock holdings. In 2003, records show, federal appeals court judges issued rulings in at least seven lawsuits while they or their spouses owned stock in a company involved in the case or had other financial ties to a party in the disputes. The problem stock holdings ranged in value from a few thousand dollars to as much as $50,000. Federal law requires that judges remove themselves from any case in which they know they have any financial interest.

A second set of ethical lapses involves seminars held at resorts by a Montana-based group, the Foundation for Research on Economics and the Environment (FREE).

On at least six occasions from 2002 to 2004, federal judges accepted air travel, food and lodging from the libertarian foundation but did not list the gifts on their annual disclosure reports, as required by law, documents and interviews show. The seminars dealt with economics and the environment, but also offered the judges time for fishing, hiking and horseback riding.

The review found that some judges were repeat offenders: Previous investigations by The Post identified nearly identical ethical lapses involving two of the judges.

It is impossible to determine just how frequently judges violate ethics laws because public records are limited. A 1998 law allows judges to black out some or all information on disclosure reports before releasing them to the public. Also, many organizations keep confidential the names of judges who accept expense-paid trips, frustrating attempts to verify disclosure reports.

Ethics experts expressed surprise that such transgressions persist because court authorities reacted to earlier revelations of ethical violations with promises of reform.

"It seems to be a very blatant violation of the code of judicial ethics," said Jeffrey M. Shaman, a judicial ethicist at DePaul University.

Stephen Gillers, a specialist in legal ethics at New York University, said the study "goes to the heart of what a judge is understood to be."

"Congress says you cannot sit [on a case] if you or your spouse owns even one share" of stock, Gillers said. "It's the law, and judges have to obey it."

The findings show that new laws are needed to prevent abuse, said Douglas T. Kendall, executive director of Community Rights Counsel, a nonprofit Washington law firm that supplied The Post with documents outlining the problems.

"These problems are getting worse, not better, and it's because the judiciary hasn't taken some simple steps to make them go away," Kendall said.

Thomas F. Hogan, chief judge for the District of Columbia and chairman of the executive committee of the U.S. Judicial Conference, which oversees ethics issues, said in a statement that the lapses, while regrettable, are the exception, not the rule.

"The judiciary will continue its already widespread efforts to educate judges on their financial disclosure requirements and will develop additional tools to assist judges in identifying potential conflicts," Hogan said.

Earlier this year, Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, introduced legislation to ban privately financed trips for federal judges and make it easier for the public to identify stock conflicts. A Leahy spokeswoman said the senator raised the issue last month with the Judicial Conference.

In a statement, Leahy said, "Our judges must be beyond reproach -- in appearance and otherwise."

Stock Conflicts

The stock conflicts found involved federal appeals judges; the study did not look at conflicts involving the much larger pool of trial-level judges.

Some of the judges said they missed conflicts involving subsidiaries of companies in their portfolios. Others said they were confused by cases with multiple players or unaware of a spouse's assets. Federal law directs judges to know their financial interests so they can quickly resolve conflicts.

Judge Bruce Selya of the 1st Circuit in Rhode Island held up to $15,000 in stock in the Federal National Mortgage Association in 2003 while participating in a lawsuit against the company. Selya sold the stock nine days after entering judgment in the case.

Selya said he was unaware of the conflict until told by The Post, explaining that "anything that involves human beings is susceptible to error."

In 1999, a similar Post study discovered that Selya had participated in three lawsuits while owning stock in one of the companies involved. Selya blamed those problems on his investment manager, who the judge said bought stocks for his portfolio and only later supplied him with the company names.

Other judges whose disclosure statements showed that they had a financial interest in litigants in their courtrooms included Eric L. Clay of the 6th Circuit in Detroit, Martha Daughtrey of the 6th Circuit in Nashville, James Dennis of the 5th Circuit in New Orleans, John Coffey of the 7th Circuit in Milwaukee (two cases) and Harry Pregerson of the 9th Circuit in Woodland Hills, Calif.

Coffey said the securities in question were held in a trust overseen by his wife that primarily benefited their adult children and from which she had drawn money. The judge said he did not believe that he was required to withdraw from such cases but would do so in the future.

In numerous other cases, judges' disclosure reports appear to identify conflicts of interest involving stocks, but the judges contended in interviews that no true conflicts existed because they had inadvertently misrepresented their holdings on the statements.

Unreported Trips

In most cases, it is impossible to independently determine whether judges are complying with the disclosure laws. That's because most organizations that give judges expense-paid trips keep the names of the judges secret.

An exception is FREE, the libertarian foundation. In recent years it has listed on its Web site the names of participants in its seminars, which are held at a dude ranch and a historic railroad hotel in Montana.

Hundreds of judges have attended, and officials at the private, nonprofit foundation said they pick up all costs, including airfare, for 90 percent of them.

FREE estimated that food, lodging and horseback riding for one recent five-day seminar totaled $1,350 per person. Judges often bring their spouses but must pay for any additional costs incurred.

When questioned, five judges who attended seminars between 2002 and 2004 acknowledged accepting free trips but not listing them on disclosure reports. Some judges said they forgot to make the entries, while others said they were unaware of the rules.

Ethics experts questioned those explanations, pointing out that the annual financial disclosure forms, which the judges must sign under penalty of law, direct them to itemize each gift and reimbursement for "transportation, lodging, food."

One judge who left the section blank was Peter Beer of the Eastern District of Louisiana. Beer checked a box labeled "none" on his reports for 2002 and 2004.

In an interview, Beer said that FREE had paid expenses at two seminars on a tourist ranch near Yellowstone National Park. "As far as I was concerned, that was not an item that I was required to report," Beer said. "I never considered I was obliged to do that."

The sponsors of the seminars disagreed.

"There's no controversy over this -- it should be disclosed," said Pete Geddes, FREE's executive vice president. He called the judges' failures to make the trips public "surprising and a little frustrating."

Beer said the ranch provided "pleasant surroundings" and, after the day's discussions, allowed time for hiking and other outdoor activities. Beer said he thought, but could not be sure, that his wife accompanied him on one of the trips.

Beer should have been on notice about his legal duty to disclose the gifts, Kendall said. A study by The Post in 2000 found that Beer had failed to disclose an earlier FREE trip.

Some ethics experts said the lapses were especially striking because the FREE seminars have become controversial in recent years after questions about their content were raised by Community Rights Counsel. The law firm argues that FREE tilts its seminars to emphasize views favorable to the foundation's corporate backers, something FREE and many judges adamantly dispute.

Other judges who acknowledged accepting expense-paid trips but failing to disclose them included David Sentelle of the District of Columbia Circuit Court, Gerald Bard Tjoflat of the 11th Circuit Court in Atlanta, Dudley H. Bowen Jr. of the District Court in Augusta, Ga., and Malcolm Howard of the District Court in Greenville, N.C.

Judges who did not respond to inquiries about their attendance at the seminars included Vanessa Gilmore of the district court in Houston, Donald E. Walter of the district court in Shreveport, La., and Judith M. Barzilay of the U.S. Court of International Trade in New York. None disclosed the trips in their annual reports.

 

 





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