Junkets for Judges

by Sharon Schmickle and Tom Hamburger

Supreme Court justices took trips at West's expense	U.S. Supreme Court justices and federal judges accepted luxurious trips and other benefits from West Publishing Co. during a period when they made decisions, on and off the bench, worth millions to the Minnesota company. In the last decade, West has been drawn into bitter battles with competitors and public-interest advocates who are challenging its control over key elements of legal publishing. An examination of court records and judges' papers from this period shows a range of gifts accepted by federal judges from a company that is both a major contractor and a litigant in the courts: Seven Supreme Court justices took trips at West's expense to help select the winner of a $15,000 cash award that West bestows on a federal judge each year. The meetings sometimes were held at locations recommended by the justices, including the Virgin Islands, Florida and California. Since 1983, the court declined to review five cases that lower courts had decided in West's favor - including two copyright matters of high importance to the company. One appeals court judge accepted the $15,000 award while serving on a panel that was preparing to issue an opinion in a West copyright case from Texas. Other federal judges with jurisdiction over West cases accepted VIP golf tournament tickets or attended receptions paid for by the publisher. Outside the courtroom, judges who received benefits from West participated in deliberations over spending millions in government money for the publisher's products. And they helped set policies affecting the legal publishing industry in which West is fighting to hold its position. The justices and judges who were willing to discuss the matter with the Star Tribune said there was nothing illegal or improper about anything they received from West.
Much of the meeting time was devoted to golf, tennis and other socializing	But some leading legal ethicists questioned whether the jurists adhered to ethics codes and a federal law requiring judges to disqualify themselves in cases where their impartiality might reasonably be questioned. Other ethicists saw no violation of the law or the codes but said it was ill-advised for judges to accept expensive trips and cash awards from a company with so much at stake before the courts. West clearly broke no laws in making the gifts. And West officials said that the company has done nothing wrong and that its practices are no different from those of its competitors. Ethicists said, however, that West's century-old status as virtually an unofficial arm of the federal courts demands new scrutiny in this time of growing competition and heated debate over its business practices. And several of West's opponents in the courts said their trust in the impartiality of the courts has been shaken. The justices made the trips in the last decade to help select the winner of a judicial award West established in 1982 in honor of Judge Edward Devitt, the since-deceased chief of Minnesota's federal bench. Since the award program's inception, seven justices -- four still on the high court -- have participated, accepting travel provided by West. They are Justices Sandra Day O'Connor, John Paul Stevens, Antonin Scalia and Anthony Kennedy and now-retired Justices Lewis Powell, Byron White and William Brennan. Devitt's correspondence with the justices, reviewed at the Minnesota Historical Society, shows that the settings were luxurious and that much of the meeting time was devoted to golf, tennis and other socializing for the committee members, West executives, spouses and friends. One judge who attended a meeting held this year at New York's Four Seasons Hotel reported spending just six hours on substantive committee business during a three-night stay. All seven justices declined repeated requests for interviews, but Scalia said in a letter to the Star Tribune: "The Devitt Award has been presented for a number of years to an individual who has brought honor and distinction to the federal bench. A member of this Court has, I believe, always been one of the members of the selection panel; at least six of my colleagues or predecessors have served in that capacity. I do not believe, nor to my knowledge has any of them believed, that that service requires disqualification from matters involving West Publishing Co." Powell also wrote a letter, saying: "That company [West] has been of great importance to the legal profession and to legal scholars. I was proud to serve on the Devitt Award Committee." West President Vance Opperman gave the Star Tribune a one-hour interview in November, but he and other West executives have declined to discuss the newspaper's more recent findings except in written answers to written questions. Chairman Dwight Opperman also sent a letter to West employees and retirees on Feb. 23, warning them that the company has become a focus of "attack journalism" and promising "helpful tips" on rebutting the newspaper's report with letters to the editor or "among your contacts in the community."
Courtesy of West, judges went to exclusive resorts	The American system of justice gives federal judges their jobs for life to help assure their impartiality. Yet these judges accepted gifts of a type that have caused scandals for members of Congress and the Cabinet. "It seems that they went to high-priced resort areas at an optimum time of year, first class," said Stephen Gillers, a law professor at New York University and an expert in judicial ethics who was asked to comment on the Star Tribune findings. "I put myself in the position of the opponent of the sponsor of those trips. A judge has to say, 'Suppose a case comes before me in which my benefactor is a party. Will its opponent be concerned?' I believe the answer will often be 'yes.' " The justices went courtesy of West to exclusive resorts: Caneel Bay on St. John, Virgin Islands; the Ritz-Carlton in Naples, Fla.; the Paradise Island Resort & Casino in the Bahamas; the Marriott's Rancho Las Palmas in Palm Springs, Calif.; the Breakers in Palm Beach, Fla., and other locations in Hawaii, California and New York City. In a letter to the Star Tribune, spokeswoman Ruth Stanoch said West is not alone in providing recognition for the judiciary and named 21 other awards judges receive. Of the organizations responsible for the awards that were listed, the Star Tribune was able to contact 19 and found none that included a direct cash prize to the recipient and none that was directly administered by a corporate sponsor. Federal rules allow judges to accept awards recognizing their achievements. West said its award "complies with all applicable laws, regulations and codes. Were this not true, questions as to its propriety would have been raised years ago by the judiciary itself." When the Star Tribune inquired, some members of the judiciary questioned whether they would accept the award or trips associated with the award while considering cases or administrative questions involving West. "It's something I need to think about," said Chief Judge Richard Arnold of the Eighth Circuit Court of Appeals, chair of the budget committee for the judicial branch. Arnold served this year on the Devitt panel, which met at the Four Seasons Hotel in New York. If a West case came to his court after his service on the Devitt committee, Arnold said, he would consider disqualifying himself from the case or disclosing his relationship to the company. Members of the Supreme Court who accepted trips more expensive than that accorded Arnold neither disqualified themselves nor notified the litigants of the travel.
Several federal judges revealed only sketchy details on their annual disclosure forms	West and some of the federal judges involved cite rules that permit judges to accept reasonable travel expenses for themselves and their spouses to attend activities that improve the law. But ethics experts said that holding these meetings at exclusive lodgings paid for by a court contractor and litigant goes too far. Gillers poses this analogy: The rules also allow judges to accept complimentary law books from publishers, but that doesn't mean they can accept books that are bound in gold. "Imagine someone coming along and offering you a dream vacation. It seems to me that a judge has to be suspicious when the donor has business in or with the court," Gillers said. Federal law requires that judges safeguard the appearance of impartiality. Justice Stevens, who accepted West-paid trips to the Bahamas and Florida, declined to comment for this article. But in a 1987 decision, he interpreted a section of the U.S. Code that prohibits judges from hearing cases in which they may be partial. " . . . People who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges. The very purpose of [the prohibition] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." Once judges accept gifts, ethics rules say they have an obligation to consider disqualifying themselves from cases involving their benefactor. The overarching standard in the Code of Judicial Conduct says a judge should disqualify himself or herself in cases in which the judge's impartiality "might reasonably be questioned." "Looking at the standard set by the disqualification statute, I think the judge probably should not have participated in a significant decision involving West at a time when the planning for a resort trip was in process," said Steven Lubet, a professor of law at Northwestern University. On the other hand, Geoffrey Hazard Jr., law professor at the University of Pennsylvania, said: "I don't think the judges violated a rule. I'm sure they don't think they violated a rule." In the mid-1980s, U.S. District Judge Harry MacLaughlin disqualified himself from a copyright case involving West in Minnesota's federal courts. He did so because he had "become acquainted with some of the officers of the company at various events over the years," he said through a secretary. Yet Supreme Court justices who accepted travel that included socializing with West's executives did not disqualify themselves. And a justice who accepted benefits from West failed to meet another ethics obligation: Federal rules require them to disclose gifts, travel reimbursement and entertainment they and their spouses receive from anyone outside the government. Justice O'Connor did not disclose anything about one of the West-funded trips she took to a meeting in California. When the Star Tribune inquired about it last week, a court spokeswoman said: "The justice and her staff were horrified that the 1990 trip had been omitted from her financial disclosure form. It should have been included. They try to be conscientious about reporting everything and she is immediately sending an amendment to the proper authorities to correct the oversight." Several federal judges revealed only sketchy details on their annual disclosure forms, saying that they accepted trips involving the Devitt selection committee or the Devitt award but not naming West as the sponsor.
Federal courts run themselves with little oversight	Unlike the executive branch, where inspectors general review conduct in Cabinet agencies, the federal courts run themselves with little oversight. The hallowed concept of separation of powers keeps Congress at a distance. The Freedom of Information Act, which permits public access to a wide range of government records, specifically exempts the judicial branch. And reporters rarely inquire beyond the cases before the courts. But a peek behind the curtain -- made possible through a review of Devitt's papers - reveals an eagerness of justices and judges to accept benefits offered by West. "As to where the next meeting of your Committee is held, Caneel Bay is a place my wife Jo and I always have hoped to visit," Justice Powell wrote in a March 1984 letter to Devitt. Within weeks, West put such plans in motion. Excerpt of October 1984 letter to Devitt from Justice Powell The Powells, the Devitts and another judge and his wife joined West's president and CEO at the time, Dwight Opperman, and his wife for a trip to the exclusive resort in the Virgin Islands the following autumn. A guidebook describes the resort as "a cross between that of an exclusive country club and a genteel island plantation . . . where privacy and peace prevail, crowds are unheard of and the hassles of civilization are left outside the front gate." Today, double-occupancy rooms range up to $615 per night at Caneel Bay. When urging Justice Stevens to become a selection-committee member in 1990, Devitt wrote: "I feel sure you will enjoy it. In the past we have met for several days in late January or early February. We have met in Palm Springs, the Virgin Islands, Palm Beach [and] Naples, Florida and this month we met in Bel Air, California. It makes a nice break and the responsibilities are not too burdensome." Often, Opperman wrote to the justices directly to remind them that Devitt committee members traveled first-class.
Ethics experts said it is the judges themselves who are responsible for monitoring the propriety of accepting gifts	Judges throughout the country have come to view West as an arm of the courts as it prints some 60 million books and pamphlets each year. The company is highly respected not only for the volume of its presses but also for the quality of its work as it prints the laws and selects and edits the court opinions that lawyers and judges rely upon to argue and decide cases. West and its major competitors have funded judicial branch activities through the years. But West stands apart in its generosity. The Eagan-based company has bestowed $5,000 annual awards on law librarians and sponsored all-expense-paid conferences in San Francisco and New Orleans for court information officers. Like its major competitors, West has underwritten legal seminars that are attended by judges. Sometimes West's gifts have been individual acts of kindness: The company provided limousine service and an escort for a judge from South Carolina who needed to travel from the Twin Cities to the Mayo Clinic in Rochester, Minn. Sometimes the gifts have been parties, such as the receptions West has sponsored for several years at the judicial conferences in the U.S. Eighth Circuit Court of Appeals, which includes Minnesota and six other states. There is art work the company has commissioned, such as bronze busts honoring retired Chief Justice Warren Burger. There is the gratis printing of histories of the courts in Minnesota and South Dakota. Add to that small gifts the company provides to judges. Many of them, such as personalized law books and calendars, aren't considered a problem by many ethicists. The Devitt award was established while West was under the command of Dwight Opperman. Now West's chief executive officer and board chairman, he declined to be interviewed by the Star Tribune. In 1993, his son Vance, a prominent Minneapolis attorney, replaced him as president. Vance Opperman agreed to a one-hour interview in November, but declined recent requests for interviews. The company tries "to be responsive to judges" in the same way its competitors are, he said in November. "Let me put it this way for you: I'm a trial lawyer. I spent 25 years trying cases, generally in federal court. I'm the last person in the world, maybe by training or even by genetics, to antagonize a judge . . . My dad's a lawyer. Most of our people here are lawyers. We'd be the last people in the world that would not want to have good, respectful relationships with the courts." Indeed, ethics experts said it is the judges themselves who are responsible for monitoring the propriety of accepting gifts from a legal publisher or other donor. West's spokeswoman said the company's activities are intended "to educate people about our company and our products and about legal issues, to promote the legal profession, and to honor excellence." Its behavior is no different from that of its rivals in the competitive world of legal publishing, she said. " . . . you should be very clear on the point that our competitors do the same things that you ascribe to us." West's competitors have funded activities for law librarians who are government employees. And they have underwritten events for professional groups, such as bar associations, that are attended by judges. But West's largest competitors, LEXIS-NEXIS and Thomson Publishing, say they do not provide any direct benefits to judges. LEXIS-NEXIS endows an award that judges are eligible to receive but keeps the selection process at arms length by giving administrative responsibilities to a nonprofit professional organization, the American Inns of Court Foundation.
Many of West's battles, business and otherwise, have ended up in court	Since the Devitt award was established in 1983, many of West's battles, business and otherwise, have ended up in court. Since 1985, two individuals, a city, a state and a company have asked the Supreme Court to review decisions lower courts had made in West's favor. All those requests were denied, leaving West the winner. The decisions may have been in keeping with the merits of each case. Still, the selection-committee trips "disturb our sense of confidence in the result," said Gillers, the ethics expert. West's opponents chose stronger words. "That just breaks my heart. It's awful," said Donna Nelson, a former Texas assistant attorney general who asked federal courts all the way up to the Supreme Court to rule that the state of Texas -- not West -- owned rights to the arrangement of the state's laws. Texas lost. One judge on the three-member appeals panel that ruled against Texas was John Minor Wisdom, who accepted the $15,000 award after hearing Nelson's arguments and before the panel issued its ruling. Asked about that, Judge Wisdom said that "any judge worth his salt wouldn't be influenced by the fact that it was West Publishing Co." After losing at the appellate level, the state appealed to the U.S. Supreme Court. There, three justices who received Texas' petition had taken trips at West's expense. The Texas case was one of several copyright suits West fought in federal courts after judges and justices took trips and other benefits from the company.
West challenged over electronic copyright to law	West's most significant victory was a landmark copyright case against Ohio-based Mead Data Central Inc. West had long been the leading publisher of the bound books that had been the stock of the industry for more than a century. But Mead surged forward in 1973 by launching LEXIS, a computerized legal research system. West followed with WESTLAW. By the mid-1980s, the electronic market for which they competed was estimated at $200 million and rising rapidly. The court battle started in 1985 after Mead announced that LEXIS would include numbers linking information on the computer screen with pages in law books published by West. The numbers are important because legal researchers are required to support their writings by citing cases and West's books are frequently cited. West filed its lawsuit against Mead in Minnesota and it was assigned to the newest member of the bench, Judge James Rosenbaum. Because of their ties to West and its executives, Rosenbaum said, "each judge who had been on the court for some time recalls that they would have [disqualified] themselves" from hearing the case. Eventually, the companies negotiated a secret settlement in Rosenbaum's chambers. Mead reportedly agreed to pay West a fee for using the page-numbering system over which West claimed to hold a copyright. Since then, no other company has successfully challenged West's copyright claim. After the agreement, Rosenbaum retained jurisdiction over settlement of the Mead case. Meanwhile, another dispute between West and one of its competitors, Bancroft-Whitney Co., was transferred from Texas to Minnesota and assigned to Rosenbaum. In 1991, with both cases under his jurisdiction, Rosenbaum accepted West's offer of VIP tickets to the U.S. Open golf tournament that also were good for meals in West's hospitality tent, transportation and related golfing activities. "The golf tickets aren't likely to be seen as influential, but when a judge is actually sitting on a case he needs to be scrupulous about not accepting gifts that would be permissible at other times," Gillers said. "I just don't think the golf tickets are likely to be seen as influential. But the U.S. Open tickets just seem to be unnecessary. I'm not saying that Rosenbaum did anything wrong. It just raises suspicions." Judges can accept ordinary social hospitality, said Leslie Abramson, a law professor at the University of Louisville. But "to me, the golf tickets are not ordinary social hospitality," he said. In accepting the tickets, Rosenbaum "may well be giving an objective observer some reason to question his impartiality." Rosenbaum said the parties in the lawsuit had advised him before he took the tickets that the Bancroft-Whitney case was likely to be settled. (It was, a month after the tournament.) And he pointed out that he had listed the tickets on his disclosure report for that year. "I took my mother-in-law to this event. I hate golf," Rosenbaum said.
Justices decline to hear appeals from West competitor	What concerns ethicists more is the behavior of the Supreme Court in the case of Mead and four other litigants who sought review of cases they had lost to West. At a critical juncture of the Mead lawsuit, Rosenbaum issued a preliminary ruling favoring West. Mead failed to get the ruling reversed at the Eighth Circuit Court of Appeals and then petitioned the Supreme Court. On Jan. 23, 1987, the justices considered the Mead petition at their weekly closed-door conference. There are no records of these meetings. And the court accepts fewer than 200 of the 5,000 petitions it receives each year. But at least one justice thought the Mead case warranted a hearing and it was placed on the "discuss list" for the conference, according to papers of the late Justice Thurgood Marshall. While actively considered, it did not draw the four votes needed to bring the case before the full court. On Jan. 27, the court announced that the Mead petition was rejected. One week after the decision was announced, Justice White was off to a Devitt selection-committee meeting with Devitt, Dwight Opperman and other West executives and their wives at a resort in California. And Justice Brennan was making plans to travel with his wife to Hawaii courtesy of West the week after that. A few years before, Justice Powell had been to Caneel Bay with his wife courtesy of West. "This strikes me as excessive for judges or any other public official," said Jeffrey Shaman, an expert in judicial ethics at DePaul University. "But I trust that the judges would disqualify themselves if West was litigating in front of them."