Copyright, 1995, Star Tribune

Justices left intact five decisions favoring West

"Equal Justice Under Law." These words, chiseled above the huge bronze doors of the Supreme Court, promise that its justices will be impartial.

Yet some parties who asked the court to review their claims against West Publishing Co. now wonder if they received equal treatment. The reason: Since 19 83, West has treated seven Supreme Court justices to luxurious trips at posh resorts or hotels.

None of them saw the trips as reason to disqualify themselves from considering whether to hear five cases involving their host. In each of the five insta nces, the justices declined to review a lower court's decision, leaving intact a decision in favor of West.

The odds already were against West's opponents, because the high court each year agrees to hear fewer than 200 of the 5,000 or so requests fo r review.

Two of the West cases involved key copyright issues. And two cases were placed on lists indicating they were actively discussed at the justices' weekly conference.

All justices refused interviews, but two -- Antonin Scalia and Lewis Powell, who's now retired -- said in written responses that they saw nothing wrong with accepting expense-paid trips to attend meetings for what they regard as a worthy purpose. "That company [West] has been of great importance to the legal profession and to legal scholars," Powell wrote in response to the Star Tribune's inquiry.

Here's a review of the justices' trips and the West-related cases the Supreme Court considered:


Byron White set the pattern for othe r justices. He accepted an invitation to serve on a committee to select the winner of the Edward J. Devitt Distinguished Service to Justice Award, a prize sponsored by West Publishing Co. The other committee members were Devitt and Judge Gerald Tjoflat of the 11th Circuit Court of Appeals. Each committee member was to serve for two years.

The committee could have reviewed candidates in St. Paul, where Devitt lived, or on the East Coast, where White and Tjoflat worked. Instead, they conducted their F ebruary meeting at Marriott's Rancho Las Palmas in Palm Springs, Calif. It's an appealing place -- a four-star resort with tennis courts and 27 holes of golf - and West picked up the tab. The trip gave White, a former All-America halfback, a chance to hav e a reunion with his old football coach, Johnny (Blood) McNally, who lived nearby. Spouses were invited.

West's CEO, Dwight Opperman, also attended the retreat, although he did not sit in on selection-committee meetings.


The group considered going to Florida for its second meeting. But after consulting White, Devitt wrote to Opperman: "He said his wife was not too enthused about Florida. We discussed San Diego, but I pointed out to him that that place is not a warm s pot in January or February."

California was selected. "Dwight Opperman has made a reservation for the 1984 meeting at Marriott's Las Palmas Hotel in Palm Springs (same as last year)," Devitt wrote to White. In the same letter, he said, "Dwight wants to have Johnny Blood McNally and his wife join us for recreation as before."

McNally, a graduate of St. John's in Collegeville, Minn., coached White when he played for the Pittsburgh Steelers. Devitt wrote McNally, inviting him and his wife to join the group for "social affairs."

A couple of weeks after the trip, paid for by West, White wrote to Devitt: "As usual, it was a pleasure to be with you even if your golf was intolerably good."

Another Supreme Court justice also benefited that year. Chief Justice Warren Burger was chosen to receive a special award from the Devitt committee. He donated his $10,000 prize to an organization that promotes interest in the law.

Lewis Powell succeeded White on the Devitt panel. "Caneel Ba y is a place my wife Jo and I always have hoped to visit," Powell wrote in a 1984 letter to Devitt.

Opperman began scheduling a fall meeting at the exclusive resort on St. John in the Virgin Islands.

Within weeks of the suggestion, Opperman wr ote to the justice, saying the meeting would take place at Caneel Bay. He promised to send resort brochures and invited the Powells to stay overnight in Miami the day before the committee was to meet. The letter reminded Powell: "The Devitt Committee trav els first class, of course." And it said, "I will send you a check for the air fares right away and will reimburse you for incidental expenses as you advise me."

After the trip, Powell wrote to Devitt, sending a copy to Opperman, suggesting the next meeting be held at the Breakers Hotel in Palm Beach, Fla. He said it is "on the water, superior facilities, and affording many interesting things to do and places to see -- particularly for our ladies."


Back in Washington , Powell and White received a list of cases that included the name "West Publishing Co." during their closed-door conference meetings at the Supreme Court.

Patrick Beary, who ran a one-man law office in Queens, N.Y., had decided to press a libel com plaint against West to the nation's highest court. Beary wrote his own briefs for the case that had been thrown out by judges in lower courts. A federal appeals panel ruled that West had accurately published a court decision involving Beary and that such activity was protected by law. Beary claimed his libel case raised constitutional questions requiring the high court's review.

Beary's petition was placed on the list of requests the justices decided to discuss, suggesting that at least one justice wanted to consider it. However, it was rejected for reasons that aren't known because the court's conferences are secret.

At the time, Beary understood the rejection. Now that he knows about the trips, he's not so sure. "The justices who went on the se trips may have swayed their fellows on the court not to hear the case, you know. I am entitled to my day in court and I didn't get it," he said.


Three months after the court rejected Beary's petition, it was time for Po well and his wife to head to the next Devitt committee meeting, at the Breakers Hotel in Palm Beach, a hotel where double-occupancy rooms currently go for $290 to $455. They joined the Devitts, Ninth Circuit Judge James Browning and two West executives an d their wives.

After the January meeting, Powell wrote Opperman: "It was obvious that Jo and I enjoyed the gathering last week of the Devitt Award Committee group." He went on to praise the work of the committee, then added, "I was most favorably im pressed by [West vice president] Gerry Cafesjian." In June, Powell wrote Devitt telling how much he enjoyed photos taken by Cafesjian and mailed to him after the trip. "We had several chuckles and the pictures brought back the warmest memories," the justi ce wrote.

Less than three weeks later, West's name again surfaced before the court.

West had resisted paying more than $160,000 in back taxes, interest and penalties that the city of Phoenix was trying to collect. It was a "business-privilege" tax that the city routinely imposed on business activity conducted within its limits. A West employee assigned to represent the company in Arizona worked out of his Phoenix home, seeking orders and answering questions about West's products. West argued t hat most of its business in Arizona was conducted by direct mail and that it did not actually operate an office in the city.

An Arizona appeals court agreed with West and the Supreme Court declined to hear the case. Only Justice Sandra Day O'Connor, an Arizona native, removed herself from the vote on the city's petition.

A few weeks later, Powell and White received an unexpected invitation from West. Although their two-year terms on the Devitt committee had expired, Opperman invited the justic es to attend a special "advisory committee meeting."

Through an exchange of letters, they decided to meet in January at the Ritz-Carlton in Laguna Niguel, Calif. The resort, which sits on a 200-foot bluff overlooking the Pacific Ocean, has an 18-hol e golf course.

A handwritten note by Devitt indicates that during the Saturday-through-Tuesday gathering, only Monday morning was devoted to committee meetings. The rest of the schedule listed "free" time, golf and dining.


On Jan. 23, only days before Powell and White departed for the California resort, the court met to consider another request that it hear a case against West. It is a case that has meant more to West than any other in recent history.

The dispu te involved Mead Data Central Inc., an Ohio company that had jumped into electronic publishing and threatened West's standing as a leading legal publisher. The court opinions in Mead's computerized databases referred to page numbers in West's law books. W est had gone to court claiming copyright infringement and a federal judge in Minnesota had ordered Mead to stop using the numbers until the lawsuit was settled. Though preliminary, the order signaled that West's chances of winning the dispute were good.

After losing an appeal in the Eighth Circuit, Mead turned to the high court. For West and Mead, millions of dollars were riding on the decision. But the potential impact reached further. If the court decided to hear the case, it also could lay the gr oundwork for other publishers who were rushing into electronics.

Neither White nor Powell disqualified himself from participating in the decision, though Powell apparently thought about it. The papers of the late Justice Thurgood Marshall, on file a t the Library of Congress, show that Powell apparently considered disqualifying himself, telling the clerk of the court in a letter: "Following discussion of this case at Conference today, I concluded it was unnecessary for me to remain 'out'. Therefore p lease disregard my letter to you of January 22."

On Jan. 27, the court refused to hear Mead's appeal and ultimately the companies negotiated a secret settlement, reportedly requiring Mead to pay fees to West.

One week after that decision, Powe ll and White joined Opperman, another West executive and former committee members for the "advisory" session at the California resort. And as they departed, Justice William Brennan, who had also participated in discussions of Mead vs. West, prepared for h is own trip at West expense.

William Brennan and his wife, Mary, flew to Hawaii for the next Devitt committee gathering. They were greeted on Feb. 7, 1987, by the Oppermans, Devitt and Fifth Circuit Judge Charles Clark at the Kahala Hilton in Honolulu.

Brennan's first encounter with the Devitt panel had come in early 1986, in the form of a letter of invitation from Devitt.

"We would very much like to have you serve on the committee," Devitt had written. "I feel sure you will enjoy it. In the past we have met for several days at the time of the Supreme Court mid-winter break in late January or early February. We have met in Palm Springs on two occasions [and] in the Virgin Islands . . . It makes for a nice break from the routine, a nd the responsibilities are not too burdensome . . . The ten of us make for a small congenial group. The arrangements are made and cared for by Mr. Opperman."

After Brennan's trip to the Kahala Hilton, Powell wrote to Devitt: "Bill Brennan returned from your recent meeting with great enthusiasm and approval of the work of the committee. His delightful wife Mary was equally enthusiastic." And Mary Brennan wrote Devitt on Supreme Court notepaper saying: "Bill and I wanted you to know how very much we enjoyed being with you in Hawaii. We had a great time, didn't we."

That summer, the Brennans and Oppermans had dinner together in Rochester, Minn., while the justice was getting a checkup at the Mayo Clinic. While in Rochester, they discussed plans for the next Devitt panel meeting. Brennan wrote Devitt shortly afterward: "February 6-9 is open for Mary and me and we can't wait."


The Brennans traveled to Naples, Fla., in February for the next Devitt committee meeting, staying at the Ritz-Carlton.

Brennan apparently was asked to recruit Chief Justice William Rehnquist to serve on the panel the following year. But Rehnquist declined, Brennan reported, calling it "wonderful duty but in his special relationship with the judges of the district courts and the court of appeals he thinks his service might be regarded as inappropriate." Brennan concluded his letter to Opperman saying: "Have you anyone else in mind?"

Sandra Day O'Connor was invited to join th e Devitt committee after three of the five recent West-related petitions came before the court.

She accepted the invitation in a letter to Devitt saying: "My colleagues have reported that it is a most pleasant task carried out in a delightful settin g." She declined Devitt's invitation to suggest a meeting place.

California was chosen and Opperman wrote to O'Connor saying he would enclose "a brochure about the hotel which is one of the nation's finest." He reminded her that "the Devitt Committe e travels first class" and that he would meet the justice and her husband, John, when they disembarked from their flight to the West Coast.


The Ritz-Carlton hotel in Rancho Mirage offers luxurious accommodations near some of the country's finest golf courses and the Devitt committee met there from Jan. 28-31. Devitt had set up advance golf reservations -- with 10 a.m. tee times -- for himself and the O'Connors, Sunday at the Mission Hills Resort and Monday at the Desert Is land Country Club.

At the Ritz-Carlton, Devitt received a handwritten note from a member of West's team outlining the plans: The group would meet at the Club Lounge each evening at 5:30. At about 6, a limo would take them to dinner. The business mee tings were listed as "Time to be determined." On Sunday and Monday mornings, O'Connor and Devitt were scheduled to depart for the golf course at 9:30.

After the California meeting, O'Connor wrote to Devitt on Feb. 14: "The Devitt Awards Committee me eting was such a pleasant experience. I truly enjoyed the break from my routine and the chance to join you on the links."

Before long, it was time to start planning the next meeting, to be held at the Bel Air Hotel in Los Angeles, described in a pro motional brochure as "DISCREET. UNHURRIED. PRICELESS."

"I re-read the brochure about the fancy hotel," Devitt wrote to O'Connor in December. "I'm sure we will have a good time there. Dwight Opperman and I talked about it at lunch yesterday."

A bout the time he wrote the letter, Donna Nelson, an assistant state attorney general in Austin, Texas, was writing the next petition the high court would receive asking it to hear a case against West.

For decades, West had published the statutes of Texas and some two dozen other states under an arrangement that was welcomed by state officials. But the harmonious relationship ended in 1985, when West tried to use copyright claims to block a competitor. Texas Attorney General Jim Mattox set out to cha llenge West's copyright claims in court. Nelson was assigned to write the briefs arguing that access to the law belonged to the people of Texas, not to a private company.

West didn't claim it owned the words in the law. But it claimed rights to the arrangement, numbers and titles of the various sections in the law. Without those elements, the law would be inaccessible, Texas argued.

Federal judges at the Fifth Circuit Court of Appeals agreed with a Texas judge who had granted West's request th at the case be dismissed. When Nelson argued the case, one of the appeals court judges asked her, "Did West do something to make you mad?" Texas wasn't planning to publish the laws commercially and didn't have an "actual controversy" with West, the appeal s judges ruled.

What was never disclosed to Nelson was that one of the three appeals court judges, John Minor Wisdom, had been a co-winner of the Devitt award four months before the panel issued its ruling against Texas. West had presented him with $15,000 at a ceremony in New Orleans.

Nelson wasn't surprised when the Supreme Court rejected her petition for an appeal. But five years later -- after learning from the Star Tribune that a circuit judge had accepted the cash award and justices had accepted expensive trips from the state's opponent -- Nelson said: "That just breaks my heart. That's awful."


Five days after the court rejected the Texas petition (apparently without disqualification by any member), O'Con nor flew to Los Angeles to meet Opperman, Devitt and the others at the Bel Air Hotel.

After the trip, Devitt wrote to O'Connor: "We were all very happy to have John [her husband] with us at Bel-Air. He is a wonderful Irishman."

Later, O'Connor wrote to Devitt telling him "it was a great treat" to serve on the award committee and sent him photographs of the visit to California.

When she filed the financial disclosure forms judges are required to complete each year, she didn't report the W est-paid trip. When the Star Tribune inquired about the form, she said through a court spokeswoman that it was an oversight and that it will be corrected.

John Paul Stevens got his invitation to serve on the Devitt committee in February. "I f eel sure you will enjoy it," Devitt wrote to Stevens. Stevens responded by telephone, according to Devitt's handwritten notes, saying he wanted to meet in Florida.

That spring, Opperman wrote Stevens asking whether the justice and his wife, Maryan, preferred golf or tennis. Stevens wrote back: "It was most thoughtful of you to accommodate us. In response to your inquiry, we are both interested in tennis and golf."


Stevens, his wife and other committee members met wit h the West executives in January at the Ritz-Carlton in Naples. Judge William J. Holloway Jr., who also attended, said judges were provided with suite accommodations courtesy of West. A receipt shows that Devitts' room charge was $700 a night.

Meanw hile, in Washington, the court had received a fifth request to hear a case against West. Arthur D'Amario, a photographer from Rhode Island, had an altercation with security guards outside a rock concert at the Providence Civic Center and was convicted of simple assault. When his appeal was denied by the Rhode Island Supreme Court, West received a copy of the opinion as part of the material it routinely gathers for its books.

D'Amario tried to stop West from publishing the opinion, alleging it was li belous and would infringe on his privacy rights. Lower courts had ruled that they could not enjoin West from publishing an official court decision. D'Amario petitioned the Supreme Court to hear the case.

D'Amario did not know until last month that j ustices considering his case had been entertained by West. "I think they have a duty to notify the petitioner of a conflict of interest like this whether or not they think that the potential conflict affects their judgment," he said. "If I had known this, I might have raised an ethics complaint at the time."

D'Amario's petition came before the court's conference two months after Stevens returned from the Florida trip. The justices denied the petition on March 18.

D'Amario's petition marks the end of the requests the court has received since 1982 to hear cases against West. But the trips continued.

In May, Devitt wrote Stevens about plans for the January 1992 meeting of the committee. "We will probably meet either in some Caribbean spot o r on a boat trip out of some Florida port."


Indeed, they did find a warm port. Stevens and his wife joined the committee for a January meeting in Nassau, the Bahamas, at Paradise Island Resort & Casino.

Another judge on the committee, Holloway of the 10th Circuit Court of Appeals in Oklahoma City, reported on his disclosure form that West provided "lodging, food, entertainment and miscellaneous courtesies."

Devitt died March 2. Few records about the committee m eetings after his death are available.


Antonin Scalia was the next justice to make a West-paid trip.

In January 1993, Scalia and his wife attended a Devitt committee meeting in Los Angeles, according to his fi nancial disclosure form. Scalia had written to Devitt in August 1991 that he and his wife, Maureen, "look forward to a warm meeting place -- though we will leave the selection to you."

Scalia did not list a value for the trip. However, another judge attending that session, Seventh Circuit Court Judge William Bauer, listed the value of the three days of West-sponsored lodging and travel at $7,700.


The Star Tribune was unable to determine where the Devitt committee met to make its decisions in 1994.


Anthony Kennedy is the newest justice to join the Devitt committee. He attended his first meeting as a panelist in January at the posh Four Seasons hotel in New York City.

Kenne dy joined the group after the court decided against hearing appeals in the Texas and D'Amario cases, and no West cases have come before the court since then.

Kennedy declined to release his correspondence concerning the Devitt committee. But Richard Arnold, chief judge of the Eighth Circuit, released letters he received from Opperman describing arrangements for the meeting:

"The committee and spouses usually eat dinner as a group. If there is some restaurant you especially want to try let me k now," Opperman wrote to Arnold in October.

"There will be time for the theater and museums. I would like to know your interests so we can accommodate them."

The official business of the committee was taken care of in two three-hour meetings du ring the trip that lasted Jan. 22-25, Arnold said.

Sharon Schmickle and Tom Hamburger
Washington Bureau Correspondents

© 1995 Star Tribune

West Publishing and the courts: Index