Copyright, 1995, Star Tribune

Reforms urged in practice of taking gifts

Mike Espy was forced to resign as secretary of agriculture last year because he accepted gifts from companies his department regulated. In 1989, House Speaker Jim Wright resigned because he had improperly received funds from groups interested in legislation.

Yet, judicial officials routinely accept gifts and fav ors from legal publishers with an interest in court decisions -- and the public usually knows nothing of it.

This practice is legal and West Publishing Co. maintains that its activities and those of its competitors fall well within the bounds of eth ical guidelines. Yet it is occurring as legal publishing becomes more competitive and publishers fight many of their battles in the courts. The issues decided by judges in their administrative capacities are now worth tens of millions of dollars to the in dustry.

"Things have to change," said Steven Lubet, a law professor at Northwestern University. "The norms of conduct that developed over the centuries need to be modified and updated."

The changes recommended by Lubet and others go beyond leg al publishing to address a general lack of scrutiny, clear standards and oversight of the judiciary. Their recommendations include greater sensitivity and care governing interactions with court contractors and litigants, a stronger commitment by judges to the financial disclosure provisions now on the books and more active scrutiny by the press.


Public knowledge is a check on tyranny and corruption. Knowing this, legislators responded to the Watergate scandal of the 1970s by adopting the Ethics in Government Act, which requires public officials to disclose a broad accounting of their financial holdings, including a list of any gifts, lecture fees or other outside income.

This way, the public could learn if judges, members of Co ngress or Cabinet officers had potential conflicts in their public dealings. But the disclosure information about judges is difficult to obtain. The information is only available in Washington at the Administrative Office of the U.S. Judicial Conference. And the material can only be examined between the hours of 1 and 3 p.m. on the days that a court worker is available to pull the files.

In addition, the system is so loose that a judge can receive, say, a luxurious trip and not be required to report a dollar value for the travel or specify the source beyond a general description.

On at least one occasion, a U.S. Supreme Court justice failed to report expensive travel she received from West Publishing Co. In her 1990 disclosure report, Justice Sandra Day O'Connor neglected to list a trip to California's pricey Bel-Air Hotel that was provided by West.

In addition to the hurdles of distance, sloppy reporting and limited availability, individuals are further discouraged from checking these r eports by the fact that judges are informed of the name and affiliation of each person requesting to see their forms.

What lawyer would want a judge hearing a case to know he or she had checked the judge's disclosure form for potential conflicts of interest? The situation is made worse by the fact that under existing federal procedures, judges generally rule personally on requests that they be disqualified because of partiality or the appearance of partiality.

"That doesn't seem right," said L eslie Abramson, professor of law at the University of Louisville. He suggests that the federal courts adopt a new system for reviewing disqualification that uses an an independent panel of senior appellate judges.

Role of the press

Reporters ar e accustomed to examining the financial disclosure forms of Cabinet nominees and members of Congress. Yet this newspaper, like most others, doesn't routinely run reports on the disclosure forms of Minnesota federal judges.

The judiciary is, by autho rity of the Constitution, an independent branch of government. There is no inspector general, the built-in check on executive branch agencies. Nor is the judiciary subject to the Freedom of Information Act, which entitles citizens to obtain copies of gove rnment documents. There is none of the partisan cross-checking that occurs in the legislative branch. Separation of powers and lifetime terms for judges shield the judiciary from close scrutiny by the other branches or by political parties.

"But ult imately judges are simply government officials in a robe," said Stephen Gillers, a New York University law professor, "and it's up to the press to watch them."

Some judges contacted for this series of articles took umbrage at the newspaper's inquiri es, viewing them as insulting or a ridiculous distraction. But others - such as James Rosenbaum, David Doty and Michael Davis of the U.S. District Court for Minnesota, and Richard Arnold, Donald Lay and Diana Murphy of the U.S. Eighth Circuit Court of App eals -- responded readily to the newspaper's request for correspondence and financial information.

Most Supreme Court justices declined to respond to questions.But members of that court have acknowledged the value of forcing judiciary branch activit ies before the public eye.

As Warren Burger said months before being named chief justice: "A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self analysis . . . In a country like ours, no public institution or the people who operate it can be above the public debate."

Greater sensitivity

Years ago, a symbiotic relationship grew among legal publishe rs and judges. It made sense that the publishers, who were providing a service to the court and making a profit, would also give something back to the judges whose editorial product they sold. Indeed, rules that govern judicial conduct specifically allow gifts of law books to judges.

While the book exemption makes continued good sense to many experts, the old relationship no longer seems appropriate to some judges and ethicists.

"The vast majority of judges I deal with have no idea of the amou nt of money that's involved with these decisions," said Richard Bilby, former chief federal judge of the Arizona district, speaking of the publishing-related issues that have come before the courts in recent years.

Because of these questions and the potential for conflict, Bilby and other judges have urged their colleagues to stop accepting benefits, such as cocktail receptions, from publishers.

Sharon Schmickle and Tom Hamburger
Washington Bureau Correspondents

© 1995 Star Tribune

West Publishing and the courts: Index