Copyright, 1995, Star Tribune

West fights to maintain its lead in a changing industry

You could see it last month at the U .S. Supreme Court, where a few fledgling legal publishers wishing to compete with an industry giant chanted at guests attending a reception: "Ho, ho! Hey, hey! West Publishing pays your way!"

You could see it the previous week at a hearing of a cong ressional committee, where panel members argued over an amendment that would have limited the free distribution of government information to which the private sector (i.e., West Publishing Co. and other commercial providers of government data) has "added value."

And you could see it at West's Eagan headquarters last fall, when the company stopped the presses for a speech by President Vance Opperman: "We will win this battle. . . . If they take us on, they're taking on a handful."

He was talkin g about a skirmish at the Justice Department in a larger war, a fight over who owns the law -- who should control the systems for citing federal court opinions. Opperman's battle cry was no idle boast. As it has in the judiciary, the company has cultivate d valuable allies in other branches of the federal government and in the states.

Many government employees deliberating the future of the industry have accepted expensive trips and other benefits from West and some of its major competitors.

Of ficials at West and other publishing houses say their behavior and that of government employees comports fully with legal and ethical codes. While ethics experts consulted by the Star Tribune don't dispute that, some say that the pattern of judicial branc h employees accepting largesse from these companies is disconcerting.

Chief federal appeals court Judges Gerald Tjoflat and William Bauer, for instance, attended meetings underwritten by West that were held in luxurious locations. They opposed rule changes that would have threatened West's dominance in publishing federal court opinions.

Another judge -- Richard Arnold, chief of the Eighth Circuit Court of Appeals - accepted three nights' stay at New York's posh Four Seasons hotel courtesy of W est while helping to choose the recipient of a West-sponsored award for judicial excellence. He made the trip while heading the judiciary's budget committee, where policy decisions over spending $34 million in legal research contracts are made.

Arno ld said in an interview that now, after taking the trip, he will consider disqualifying himself from votes on budget matters affecting legal publishing.

Further, lower-level judges and court employees who help shape court information policy accepted benefits from leading legal publishers, such as lavish parties or cash awards at national conventions for law librarians.

And Congress has not been overlooked. Lawmakers, including the entire Minnesota congressional delegation, received campaign co ntributions linked to West -- and then waded into legal publishing disputes to support the company.

West executives, employees and a law firm that represents the company invested at least $848,000 in the political campaign process between Jan. 1, 19 89, and June 30, 1994, according to research done for the Star Tribune by the National Library on Money & Politics.

West's large competitors, such as LEXIS-NEXIS, also invest in the political process. But the National Library study showed that the p olitical action committee (PAC) affiliated with LEXIS' former parent company, Mead Corp., gave far less than the PACs associated with West during the same period.

The Minnesota recipients of West's political contributions say there are good reasons to help the company on Capitol Hill. West employs 4,500 people in the Twin Cities area, is a good corporate citizen and produces superb products.

West officials note that their company is one of the few remaining American-owned companies in the lega l information industry. LEXIS-NEXIS was purchased recently by European-based Reed Elsevier Co. and the other big rivals are now owned by Canadian-based Thomson Corp.

And West's competitors are not lying down. Owners of LEXIS-NEXIS, for example, have employed aggressive Washington lobbyists to further their interests.

For years, West's chief advantage lay in the close relationship it had earned with the federal judiciary through decades of reliable and high-quality work. Now, however, even that relationship is being shaken by a competitive war that broke out with the advent of new technology.

The winds of war

In April 1984, Justice Byron White wrote a memo to then-Chief Justice Warren Burger asking for a WESTLAW terminal in his Supre me Court office. "It would save my time and clerks' time," White wrote in asking for the computerized legal research service developed by West.

The memo signaled a change that was sweeping through the centuries-old way of doing legal research.

Since the 19th century, West has published court opinions in heavy bound volumes, and the organization of those opinions became the citation system favored in many jurisdictions. Through the years, West earned an unrivaled reputation for accuracy and tho roughness -- and with this reputation West received an unofficial seat in the courts' inner circles.

In the 1970s, however, West was challenged from a new direction by Mead Data Central Inc., which offered a new way of researching court cases by com puter. Mead called it LEXIS.

Now, in the age of the Internet, West is further threatened. Would-be legal publishers have been springing up like weeds. From St. Cloud to Seattle, small publishers are selling court opinions in CD-ROM sets or online to consumers with modems. The number of competing legal publishers has tripled in the past two years, according to West.

These entrepreneurs say they could compete effectively but for one factor: They do not have full access to West's citation system.

Right now, anyone with a computer and a modem wanting to read a federal court opinion can call up cases from Timeline Publishing Co. of Bellevue, Wash., which charges up to $10 an hour to use its electronic database.

But if you want to use th at research in a brief to be submitted to a federal court, lawyers will suggest you go elsewhere. You'll want to fully cite the specific page numbers courts prefer from books published by West and other longstanding publishers. In computers, those are gen erally available only on WESTLAW or the LEXIS system (which uses West numbers under an exclusive licensing arrangement) -- and computer charges on those data bases often run more than $200 an hour. West notes that its books are available to citizens free at libraries.

At first, these electronic competitors took their battle to the courts, challenging West's claim of copyright over the citation system. West prevailed in most cases, though some are pending.

Now, its competitors have adopted a ne w tactic: They are calling for the establishment of a new citation system that would not be owned by any private company.

The story of West's battles begins in the rarely seen operations of the judicial branch.

Judicial branch

Come inside the Federal Judicial Building on Capitol Hill. There, the administrators of the Judicial Conference oversee the third branch of government with its $2.7 billion budget and its 27,000 employees.

In decades past, the conference -- 26 federal judges a nd the Supreme Court chief justice -- had little to say about legal publishing.

In 1992, however, a conference committee recommended a new public citation policy that would provide equal, low-cost access to an organized database of court decisions - - a serious threat to West's position.

Although the idea had been backed by some law librarians and West's rivals, many judges didn't like it. And the committee's proposal was shelved by the full conference.

In correspondence and Judicial Conf erence hearings, the idea was opposed aggressively by one judge with a longstanding relationship with West: Gerald Tjoflat of Jacksonville, Fla., chief of the 11th Circuit Court of Appeals.

In previous years, Tjoflat had been a member of a committee that selected the annual recipient of the Edward J. Devitt Distinguished Service to Justice Award, a West-sponsored prize. In that capacity, Tjoflat traveled to plush resorts for gatherings paid for by West.

Devitt was the chief of Minnesota's fede ral bench. He died in 1992, and his papers are on file at the Minnesota Historical Society. Among the correspondence is a December 1983 letter from Devitt to Tjoflat saying that then-West President Dwight Opperman "will be happy to advance you first class airfare for you and Sarah . . . and will reimburse you for all other expenses later on or handle it in any other way you find more suitable."

A letter from Tjoflat to Devitt describes his feelings after a Devitt selection committee meeting at the M arriott Las Palmas hotel in California in 1984: "It has been an honor to have worked with you and [Supreme Court Justice] Byron [White], and Dwight. The association and experience are cherished moments of my life."

The correspondence shows Tjoflat a ttended two other Devitt committee meetings, in 1983 and 1987, both in California.

Tjoflat declined repeated requests for comment. But when asked about his travel in writing, Tjoflat wrote back that some of the Star Tribune's assumptions were wrong. "A more thorough investigation on your part would reveal this," he said. He declined invitations to elaborate further.

In 1991, Tjoflat came to Washington and opposed the citation-system change at a hearing of a Judicial Conference subcommittee. He testified at one point: "If I appear a little bit testy, it's not personal . . . it's simply that we have lots to do, and we don't want to have any red tape in what we do." Dwight Opperman also testified against the proposal that day.

In addition t o his testimony, Tjoflat wrote letters to judicial branch administrators opposing the change in the citation system. Neither in his letters nor the published transcript of his testimony did he disclose his relationship with West.

Tjoflat was not the only person associated with the Devitt award to weigh in on the matter. In August 1991, Devitt wrote to Judge William Bauer, chief of the Seventh Circuit Court of Appeals, welcoming him as a member of the award committee.

"We normally meet for seve ral days at the time of the Supreme Court's mid-winter break in late January," Devitt wrote. "We have met in Palm Springs, the Virgin Islands, Palm Beach, Naples, Florida and Bel Air, California. It makes for a nice break from the routine, and the respons ibilities are not too burdensome."

Devitt wrote that the group would include Dwight Opperman, one of West's vice presidents and their wives.

"The arrangements are made and cared for by Mr. Opperman," he wrote. Five days after that letter was w ritten, Bauer wrote to an official of the Judicial Conference opposing the citation-system change. "Although the idea for a standard electronic citation system has an obvious appeal," he wrote, "there is a question as to whether it is necessary. Our circu it executive, clerk, senior staff attorney and librarian met and saw no need at present for such a system."

Bauer did not respond to requests for comment by the Star Tribune.

Ethics experts say that if Bauer or Tjoflat accepted luxurious trave l from West and then heard cases involving the company in their courtrooms, they would have to consider disqualifying themselves. But in administrative matters, the rules are less clear.

"We certainly would hope that judges have a good degree of imp artiality in their administrative functions," said Jeffrey Shaman, a law professor at DePaul University and coauthor of "Judicial Conduct and Ethics," a guide for judges and judicial branch employees. "But the rules aren't as clear on the administrative s ide. . . . I certainly would say that a judge should be above reproach in all functions of the office -- even in administrative functions. The judges should want to avoid even the appearance of impropriety."

In addition to Bauer and Tjoflat, other j udges wrote in opposition to the plan, including Senior Judge Donald Lay, who at the time was chief judge of the Eighth Circuit Court of Appeals. Lay said in his letter that "there is no present need that a new citation system be adopted," and he forwarde d West's comments on the issue. In 1992, the full Judicial Conference -- of which Bauer and Tjoflat were members -- decided not to adopt a new citation system. The conference meetings are closed, and there was no recorded vote.

But the issue would r eturn later in 1992 -- this time in Congress. At the request of a rival publisher, Rep. Barney Frank, D-Mass., introduced a bill that would have prohibited copyright of the citation and numbering systems for federal and state laws and court opinions.


When West's lawyers appeared before a House Judiciary subcommittee in 1992 to argue against Frank's bill, members of the panel had good reason to recognize West's name.

All 16 subcommittee members had received campaign contributions from people or PACs linked to West. In all, those members had collected more than $39,000 during the three years before they heard the bill, according to Federal Election Commission (FEC) records.

The bill, which would have diminished West's copyrig ht hold on citations, died in the subcommittee without a vote. Within the next six months, 10 of the subcommittee members received more than $23,000 in additional contributions from West-affiliated donors.

West's political giving goes well beyond th ose contributions. Members of the Opperman family gave $165,000 to the Democratic National Committee between Jan. 1, 1991, and June 30, 1994, according to an analysis of FEC records done for the Star Tribune by the National Library on Money & Politics. Ad d contributions from West and a law firm that represented the company and the sum donated to the party is more $205,000.

Vance Opperman attributes the contributions to a sense of civic duty that also is reflected by three decades of his own politica l activism. "People should be involved in the political process in a variety of ways," he said in an interview in November. "Financial involvement is the least of it."

And he downplays the size of West's contributions and their influence. "We are a very, very small financial actor," he said.

However, Common Cause, a government watchdog group, ranks West high on a list of "soft" money donors to the Democratic Party between July 1992 and June 1994 - ahead of the United Auto Workers and the Inter national Association of Machinists & Aerospace Workers. (Soft money goes to political parties rather than to candidates. Such contributions are not subject to the limits imposed on individual donations.)

In all, the political contributions from thos e affiliated with West are substantially greater than the sums given by donors affiliated with West's chief rivals.

Between Jan. 1, 1989, and June 30, 1994, donors affiliated with West contributed at least $848,000 to the political process, the Nati onal Library found. Those affiliated with the conglomerate that owned LEXIS-NEXIS gave $218,275 in soft money and contributions to candidates, the National Library found.

Before the recent sale to the European conglomerate, LEXIS was owned by a subs idiary of Mead Corp., which also makes paper, container board and other products. A PAC funded by Mead employees gave $174,125 during the period, compared with $428,321 from PACs associated with West.

The National Library found less than $5,000 in c ontributions from employees of publishing companies owned by Thomson Corp., another major West rival.

All 10 members of the Minnesota congressional delegation -- Democrats and Republicans -- received contributions from those affiliated with West bet ween Jan. 1, 1989, and June 30, 1994. The top recipient was Rep. Martin Sabo, a Democrat, who received $21,095. Rep. Jim Ramstad, a Republican, received $10,700. Sen. Paul Wellstone, a Democrat, collected $500. The incumbent whom Wellstone defeated, Rudy Boschwitz, collected $35,999.

After Wellstone's victory in 1990, he called Vance Opperman, among others, asking for contributions to a soft-money account run by the Minnesota DFL Party. Wellstone said he has no idea how much or whether Opperman cont ributed. Records at the state Ethical Practices Board show that Opperman has written checks for more than $100,000 to party accounts since Wellstone's election.

Until he took over the presidency of West in 1993, Vance Opperman worked as a partner in a Minneapolis law firm that often represented West. In a written statement to the Star Tribune, West's spokeswoman said that Opperman's "career as a private attorney and political activist are separate from his recent work as our president. It is ludicro us to imply that his political involvement over the past 27 years was an orchestrated effort to build an influential network prior to becoming our President. This insinuation only aims to demonize our company and the Opperman family."

Much of the mo ney given by those affiliated with West went to races outside Minnesota, including California. Vance Opperman worked personally on the campaign for the reelection of Sen. Dianne Feinstein, D-Calif.

Opperman and those associated with West donated at least $31,000 to Feinstein's campaign in 1992-93. At the time, she was a member of two Senate Judiciary subcommittees with jurisdiction over issues important to West: Patents, copyrights and technology and the law.

In the November interview, Opperma n said he admired Feinstein because she is tough-minded, competent and a "nifty person."

West has deployed former Minnesota Reps. Gerry Sikorski and Vin Weber as lobbyists. Its spokeswoman, Ruth Stanoch, formerly chaired the Minnesota DFL Party.

Most recently, the company turned out its lobbying forces to push a provision that would prohibit government agencies from distributing information to which a private company had "added value." Such a change might prevent the Justice Department, for ex ample, from distributing its database of federal case law because West claims proprietary rights to that database.

West met fierce opposition in its attempt to insert the provision in the Paperwork Reduction Act before the House Government Reform an d Oversight Committee. Open-records advocates and industry competitors alerted their allies and the ensuing uproar carried into an angry committee meeting last month. No member of the panel would acknowledge sponsoring the amendment, and it was dropped fr om the bill.

Those opposed to the provision included the Justice Department. An assistant attorney general wrote to the committee chairman on behalf of the department asking that the provision be deleted. In the letter, she said that West had advoca ted the amendment "to allay unfounded concerns about steps West fears the Department of Justice may be contemplating that would adversely affect its proprietary products." The next day, West issued a press release with the headline: "Justice Department Dr ops Plans for Government-run Legal Citation System Database." West's claims of a victory on the issue were carried in news reports.

But the Justice Department now says there were no plans for a government-run database.

Justice Department

West's dispute with the Justice Department started in September 1994, when Attorney General Janet Reno said the department would explore ways to improve public access to federal court opinions, especially by computer. The department also said it would eva luate "nonproprietary" systems for citing legal opinions. The state of Wisconsin and the American Association of Law Libraries were looking into nonproprietary systems, and the department wanted to assess those and others that might be proposed, justice officials said.

Members of the legal community had petitioned the department to develop a public domain citation system. Public-interest advocates, some states and many law librarians joined the call, arguing that private companies should not contro l access to the public's laws.

They also contended that consumers and taxpayers spend more than they should for legal services because of lack of competition in the legal publishing industry. West insists that there is plenty of competition in the i ndustry. "There are more and bigger players and exploding numbers of legal products and services," said West's spokeswoman.

Minnesota's congressional delegation rushed to help West in its fight with the Justice Department.

Reno hadn't said in her announcement that the Justice Department would create a government-run database. But Ramstad rose on the House floor to denounce the department's "ridiculous venture into government information policy," saying it constituted a "threat to tens of thous ands of well-paying private sector American jobs."

Ramstad joined eight other members of the Minnesota delegation in a letter to President Clinton expressing outrage. The other signers were Sen. Dave Durenberger and Reps. Jim Oberstar, Tim Penny, Co llin Peterson, David Minge, Bruce Vento, Rod Grams and Sabo.

Vance Opperman said West "brought the matter to their attention."

Sabo went a step further than the delegation's letter. Then chairman of the House Budget Committee, he joined Rep. J ohn Conyers, D-Mich., then chairman of the House Government Operations Committee, in notifying Reno that their committees wanted to review any course of action the department decided to take in the matter.

The Sabo-Conyers letter signaled that Reno' s proposal would get a chilly reception in their committees. The reasons for revamping the system "have not been persuasively established," they wrote.

Sabo and Ramstad said their eagerness to help West had nothing to do with campaign contributions. "We try to look out for all Minnesota interests on the Hill . . . that's part of our job," Sabo said. "Some of the people we help have been supportive [of campaigns]. Some have not."

Wellstone didn't sign the delegation's letter, but he sent his ow n letters to Clinton and Reno, expressing concern for West and also calling for congressional review of any policy changes the Justice Department might make.

West also asked federal judges to write to Reno. At least one judge wrote Reno opposing the citation change and attached letters sent to him by West urging opposition.

Minnesota-based U.S. District Judge David Doty also wrote to Reno opposing the change. He released copies of his correspondence at the Star Tribune's request.

The cor respondence indicates that Dwight Opperman and another West executive wrote to Doty asking the judge to help oppose the change. But Doty said he wrote to Reno before he received their letters. "I did not write the letter on West's behalf," he said.

According to the correspondence, Doty and Dwight Opperman had met at a reception for retired Chief Justice Warren Burger the week before Doty wrote the letter.

On Sept. 28, 1994, Opperman wrote to Doty: "It was good to see you at the festivities thi s week. . . . I appreciate your offer to help in our situation with the Department of Justice. . . . We would be grateful for any help you can give us in this matter."

On Sept. 29, on his court letterhead, Doty wrote to Reno saying that he was writi ng "not as a member of the Third Branch, but as a fellow citizen."

He wrote that the cost would be onerous if the government established a new system and said: "We now have in this country excellent legal citation systems that do provide access to a nyone interested."

Then he wrote: "I should admit to some chauvinism inasmuch as one of the most efficient and excellent providers of legal citations, West Publishing Corporation, is a Minnesota citizen. We are justifiably proud that West brings to Minnesota admiration, tax revenues and many fine jobs (including one for my son)."

The Supreme Court

For years, electronic publishers and news organizations had asked the courts to establish a system to disseminate opinions and briefs electroni cally.

After continued requests, the Supreme Court in the late 1980s established a committee to study the issue. It met for a couple of years and experimented with electronic dissemination before disbanding at the end of 1992. One member of the comm ittee, Supreme Court librarian Shelly Dowling, reported receiving travel expenses from Mead Data Central to a conference at Wake Forest University.

Shortly before it finished its work, another committee member, Toni House, the court's public informa tion officer, asked West's chief public relations officer at the time, Dorothy Molstad, to help sponsor a convention of court information officers.

West subsequently provided money to a nonprofit organization for a 1993 meeting in New Orleans and a 1994 meeting in San Francisco that included airfare, meals and lodging for all attendees. Neither West nor the group that organized the conference would say how many attended or what the cost was.

House said the request to Molstad came while House w as a guest speaker at West's Eagan headquarters. "They had a meeting in Minnesota in January. And I said to [Molstad], 'Geez, the poor little PIOs [public information officers] need something like this,' and so she said, 'Gee, maybe we can be helpful.' "

House said court lawyers advised her that West could not contribute the money directly. Instead, she said, West went to the National Center for State Courts, a nonprofit organization that provides training to court employees and judges. A grant from West then paid for all transportation, food and lodging for the two conventions. Both House and Molstad were speakers at at least one of the conventions. House said the meetings had been set up in accord with advice from judicial branch ethics experts. H er activity fell well within the code of conduct for judicial employees, she said.

A judicial ethicist at Northwestern University, Steven Lubet, agrees, saying House's activities in organizing the information officers should be applauded and encoura ged.

At the Ralph Nader-sponsored Taxpayer Assets Project, James Love is irate that House -- the court's liaison to the outside world -- had accepted benefits even indirectly from West.

"I find it astounding that while I had depended on her to tell members of the Supreme Court we had objected to their accepting gratuities from West, she had been accepting gratuities from the same company for herself and her colleagues," he said.

The states

Last spring, West threw a party for some 1, 000 law librarians during which the company honored Marcia Koslov, the Wisconsin state law librarian, with a $5,000 award. Instead of accepting the money, Koslov dedicated it to an art fund for her library. And other librarians, not West, chose her to rec eive the award. But the award stirred controversy because it was given while she served on a task force that was expected to propose a new citation system for Wisconsin court opinions. West and one of its competitors, Lawyers Cooperative Inc., had a large stake in the proposal.

Wisconsin is one of several states where small-scale publishers and some officials argue that large legal publishers have become too embedded in the operation of state courts. They contend that those relationships are impedin g the efficient movement of the courts into the information age.

In Wisconsin, Koslov urged that West and Lawyers Cooperative be included in the decision-making process. But then she opposed West on the issue and helped write a report recommending t hat the state adopt a citation system that would be determined by the courts, not private publishers.

The annual West awards are one of many benefits law librarians accept from legal publishers, often through the American Association of Law Librarie s. The organization includes about 800 law librarians who work for courts or other government entities and who often play an important role in deciding which products of legal publishers will be purchased and used.

West routinely sponsors parties at the organization's national conventions. Other legal publishers also sponsor social events or provide travel expenses for librarians who attend the conventions. And they award scholarships for the librarians.

Sharon Schmickle and Tom Hamburger

West Publishing and the courts: Index