Award recipient was on three-judge panel

When Donna Nelson went to federal appeals court to argue the state of Texas' case against West Publishing Co., a judge asked: "Why have you got a bee in your bonnet on this case? . . . Did West do something to make you mad?"

West claimed it had a copyright over the arrangements of the state's laws and Nelson, an assistant attorney general, opposed the Minnesota company in court.

Another of the three judges on the Fifth Circuit panel was John Minor Wisdom. The hearing was held Dec. 6, 1988. The following May, Wisdom received a $15,000 prize from West, the Edward J. Devitt Distinguished Service to Justice Award. He was presented the award at in a ceremony in New Orleans attended by West's then-president, Dwight Opperman.

"I appreciate deeply the honor conferred upon me," Wisdom said at the ceremony. "I thank the Devitt committee . . . and, of course, Mr. Opperman of West Publishing Company."

Four months later, in September 1989, the Fifth Circuit judges -- including Wisdom - issued a ruling in the Texas case in West's favor.

Texas appealed to the U.S. Supreme Court. But there was something that Nelson and the state's other lawyers didn't know: Three of the justices -- Byron White, William Brennan and Sandra Day O'Connor -- had taken lavish trips at West's expense to meetings in California, Hawaii and Florida.

The high court declined to hear the case, leaving West the winner.

West may have won in any event. And company executives didn't select Wisdom. They solicited nominations for the award, then accompanied a committee of judges to a retreat in Rancho Mirage, Calif. -- paid for by West -- where the judges chose Wisdom and one other judge who won the Devitt award that year. Wisdom said he used the money to buy a painting for his home.

There is little argument that Wisdom is worthy of the highest honors. One of the nation's most esteemed judges, his opinions on civil rights cases have been the guideposts for desegregating schools, public facilities and the workplace.

Wisdom said this month of the award: "As I think about it now, I think there might have been some question, but nobody would seriously think that was being used to gain favor for West. Nor did it make a difference . . . Any judge worth his salt wouldn't be influenced by the fact that it was West Publishing Company."

Wisdom added that "there wasn't any thought in the mind of anybody" that he should disqualify himself from the Texas vs. West case.

Judge Will Garwood of Austin, Texas, who wrote the circuit court opinion, said it is "silly" to think Wisdom might have been influenced by the award, that "it does not raise a shadow of a question."

But Jeffrey Shaman, an expert on judicial ethics at DePaul University in Chicago, said "at a minimum, the judge should have disclosed this [receipt of $15,000] and given parties in the case an opportunity to make a motion for his disqualification."

And for Nelson, a special trust was violated. "It's incredible," she said upon hearing of the award and trips from the Star Tribune. "It's very disappointing."

The integrity of the courts is compromised when judges have accepted benefits from one party in a case or a petition they are considering, she said. "It sets up a conflict, clearly a conflict," she said.

Asked whether giving benefits to judges might make West's opponents in court feel uneasy, the company's spokeswoman issued a written response: "Apparently, in the Star Tribune's odd view, litigants are to act in ways that take into account the 'feelings' of their opponents. This strikes us as a completely unrealistic standard. We question whether the Star Tribune directs its litigation counsel to bear in mind the 'feelings' of its opponents, such as unease by Star Tribune litigation opponents that the Star Tribune may be a news source providing a supposedly impartial report on the litigation. We suspect not."

Texas contracted with West to print the state's laws in 1941. The dispute started when another publisher, Bancroft-Whitney Co., tried to market an electronic version of the laws in 1985 using the arrangements West had printed. West claimed copyright and the Texas' attorney general at the time, Jim Mattox, objected, saying the state should have control over its own laws.

West didn't claim it owned the actual words in the laws. But it said it had rights to the arrangement, numbers and titles of the various sections.

The state maintained that the laws are inaccessible without those elements, that West in essence controlled the "gates" to the law. The concern was that consumers and taxpayers ultimately would be hurt if one company was allowed to hold such control, Nelson said. "When there is no competition, prices are artificially high," she said.

A District Court judge dismissed the state's case without directly addressing the issue of access to public law. Texas wasn't planning to publish the laws commercially and therefore didn't have an "actual controversy" with West, he said. The appeals court judges agreed.

Sharon Schmickle and Tom Hamburger
Washington Bureau Correspondents

© 1995 Star Tribune

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