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New Rules Mean Shift Toward Accountability for Judiciary By Tony Mauro Separately, a committee headed by Supreme Court Justice Stephen Breyer issued a report recommending modest changes in how federal courts handle ethical complaints that members of the public file against judges. Among the recommendations is what Breyer described as a "Dutch uncle approach," whereby judges would seek advice on handling certain complaints from judges of another circuit to avoid "home court" bias. Together, Tuesday's actions represent a major shift toward accountability -- or at least transparency -- from segments of a branch of government that has often resisted both. Judges also hoped to defuse pressure from Congress, primarily in the person of House Judiciary Committee Chairman James Sensenbrenner, R-Wis., who has proposed creating an inspector general's office to oversee the judiciary's handling of ethical complaints. The late Chief Justice William Rehnquist appointed the Breyer Committee in 2004, mainly in response to congressional complaints. "Issuance of the two policies and the Breyer Committee report are responsive to these concerns," says University of Richmond law professor Carl Tobias. "If the judiciary does not police itself, Congress may well attempt to do so in ways that judges may find troubling." Tuesday's focus on judicial ethics comes on the eve of the Sept. 21 hearings by the House Judiciary Committee that could lead to the impeachment of California federal trial Judge Manuel Real, which would be the first judicial impeachment since 1989. Chief Justice John Roberts Jr., in a rare impromptu press conference at the Court, applauded both of Tuesday's moves and urged federal judges to take "prompt action." Significantly, none of what happened Tuesday affects the Supreme Court itself. The Judicial Conference never sets policy for the high court, and Breyer, speaking at the same press conference, said the scope of his committee's study of disciplinary procedures did not include the Supreme Court. As a result, it appears the justices have still not taken action on a 1993 recommendation by a blue-ribbon government commission that the Court consider establishing procedures for handling complaints against its own members. Breyer said his committee concluded that, overall, the handling of ethical complaints by lower federal courts "does not suggest a serious problem," but a better job needs to be done in some instances, especially in the handling of complex complaints that receive media attention. The Judicial Conference actions could have the most immediate impact on privately sponsored seminars other than those hosted by bar associations and judicial education groups. Under the new rules, judges will be barred from accepting reimbursement for seminars hosted by organizations that do not publicly disclose their funding sources, speakers' names, and other information. Once they attend, judges will have to publicly disclose their attendance on their court's Web site within 30 days. "The new junket rules are a pretty dramatic change of course for the judiciary, and they send a clear statement to judges that they should think twice before attending junkets," Doug Kendall of the Community Rights Counsel said Tuesday. Kendall's group has repeatedly criticized judges for attending seminars funded by companies with an interest in influencing how judges handle economic and environmental cases. One of the targets of Kendall's criticism has been the Montana-based Foundation for Research on Economics & the Environment (FREE), which has hosted hundreds of federal judges in the past 15 years. It asserts that none of the funding for its judicial seminars comes from any corporate entity or any foundation that participates in federal litigation. "I've seen the requirements, and everything they ask for, we've been doing voluntarily," says FREE Executive Vice President Pete Geddes. "FREE is happy to do anything it can to reassure the public about the integrity and independence of the judiciary." The conference's action on conflict-checking software reflects the concern that many judges don't think it works well and have not put it to use. Now they will have to, said D.C. District Court Chief Judge Thomas Hogan, head of the conference's executive committee. Hogan told reporters his software reminds him of a potential conflict of interest every time a party named Johnson appears before him. That, he said with a laugh, is because he and his wife own stock in the medical company Johnson & Johnson. Did a Federal Judge Cross a Legal Line for His Clerk? Julie Kay Southern District of Florida Judge Shelby Highsmith and a U.S. Marshals Service deputy are drawing criticism for intervening in a personal dispute involving the judge's clerk and her daughter at a downtown Miami store. The incident is raising eyebrows in the legal community as well as questions about whether Highsmith may have violated judicial canons by misusing his judicial powers. Both Highsmith and an unidentified deputy showed up at the store during the incident, flashed their government identifications, and began questioning store employees and asking for their addresses. The incident occurred in December, but it only recently came to light when the city's Civilian Investigative Panel took up the issue Aug. 15, after Highsmith filed a complaint against a Miami police officer who responded to the scene. The officer, Michael Ragusa, was cleared of charges of discourtesy. According to a CIP report as well as Highsmith's clerk, Laura Sabbatino, the incident began when Sabbatino's daughter, Adriana Thorne, was shopping at Gifts & Luggage at 27 E. Flagler St. Thorne purchased a $7 item and paid by credit card. Sabbatino, in an interview with the Daily Business Review, said that the clerk told her daughter the card could only be used for debit and then handed back the card wrapped in a receipt. About five minutes later, Thorne got a call from her bank, Wachovia Bank, asking whether she had just made a $300 purchase at Macy's. The card had been used in both the jewelry department and the baby department. Thorne took out her credit card and discovered it was not hers but someone else's. She called her mother, who was standing in front of Highsmith in his chambers. According to Sabbatino's statement, the judge "instructed Mrs. Sabbatino to call the Deputy's Service and that they were on the way down to her daughter." Both the judge and a deputy, whose name is not identified in the report, appeared at the store and asked to speak to the cashier. The judge then showed the owner his identification. The owner replied that the clerk, who is pregnant, was not feeling well and had gone home. When the judge began asking more questions, the store owner responded, "This is not court! If you have a complaint, call the police!" The deputy, who appeared on the scene a couple of minutes later, asked the store owner for the clerk's address, since she had left before the deputy's arrival. The owner, Joseph Yoo, reluctantly gave the deputy the address, according to Yoo's statement, and the deputy left the store. The report does not state whether the deputy took further action. At this point Sabbatino called the police, and Highsmith departed. Ragusa responded to the scene and the clerk showed up. The clerk said she was not feeling well and Ragusa asked whether she needed fire rescue. "OK, stop! Everyone step away," Ragusa said. 'We have a pregnant woman here. This investigation can't continue." He then said, according to Sabbatino, "For all I know you're the one who took the card. You can't point fingers; you need to take this up with the bank." "The officer was a jerk," Sabbatino said. "He was very rude. Instantly, my daughter felt that we were no longer the victims." Ragusa could not be reached for comment. But in his statement for the CIP, he gave a slightly different version of events. He reported that Sabbatino yelled at him and put both hands about two to three feet from his face. When he told Thorne and her mother to stand at the opposite end of the store, the mother refused, saying, "I work for a judge." Ragusa threatened to jail Sabbatino if she would not move. Highsmith, who is on leave until Oct. 30, did not return telephone calls seeking comment. Albert Hidalgo, a deputy with the U.S. Marshals Service in Miami, said he was not familiar with the details of the incident and did not know the name of the deputy involved. But he said the 80 deputies who work in the Southern District of Florida are supposed to provide protection to the federal judiciary and are not supposed to get involved in personal disputes outside the courthouse that don't involve a judge's safety. Other duties, according to a Marshals Service Web site, are to apprehend fugitives, transport and manage prisoners, serve court documents and administer the Justice Department's asset forfeiture program. Some legal observers called Highsmith's actions a serious breach of judicial conduct and likened the incident to the recent resignation of the attorney general of New Jersey, who was found to have violated her department's code of ethics by coming to the aid of a companion during a traffic stop. "The judge should apologize and be reprimanded," said Robert Jarvis, who teaches ethics law at Nova Southeastern University. "This is outrageous conduct. He used the prestige of his office for a personal favor and using public resources to intervene in a private dispute. This showed extremely poor judgment on the judge's part." Jarvis suggested that the judge write a check to the judiciary to reimburse it for the time the deputy spent on the personal errand. Highsmith's action violates several judicial canons, Jarvis said. Not only does it compromise the integrity of the judiciary, said Jarvis, but it reflects a conflict of interest on the judges' part. "It raises in the minds of the public that there are two systems of justice -- one for those who are connected and one for us poor schmucks," he said. Jarvis also reserved some criticism for the deputy, who used his powers to wrongly "intimidate and harass" the store clerk, he said. Several lawyers who did not want to be identified also said the judge erred by summoning a deputy to assist him with a personal dispute. "U.S. deputies have a serious duty and they're not the errand boys of the judges," said one Miami lawyer. For her part, Sabbatino said she was disappointed that Ragusa was cleared of the charge of discourtesy. She said the judge did nothing wrong in calling a deputy to the store. "He can have a deputy accompany him anywhere he wants to go," she said. "That's part of his job." Ethics
Lapses by Federal Judges Persist, Review Finds By Joe Stephens A number of federal judges have violated ethics rules in recent years by presiding over lawsuits while having a financial conflict. Others have failed to disclose that they traveled to resorts on expense-paid trips. Interviews and documents reviewed by The Washington Post identified about a dozen such ethical lapses in recent years. One category of problems involves stock holdings. In 2003, records show, federal appeals court judges issued rulings in at least seven lawsuits while they or their spouses owned stock in a company involved in the case or had other financial ties to a party in the disputes. The problem stock holdings ranged in value from a few thousand dollars to as much as $50,000. Federal law requires that judges remove themselves from any case in which they know they have any financial interest. A second set of ethical lapses involves seminars held at resorts by a Montana-based group, the Foundation for Research on Economics and the Environment (FREE). On at least six occasions from 2002 to 2004, federal judges accepted air travel, food and lodging from the libertarian foundation but did not list the gifts on their annual disclosure reports, as required by law, documents and interviews show. The seminars dealt with economics and the environment, but also offered the judges time for fishing, hiking and horseback riding. The review found that some judges were repeat offenders: Previous investigations by The Post identified nearly identical ethical lapses involving two of the judges. It is impossible to determine just how frequently judges violate ethics laws because public records are limited. A 1998 law allows judges to black out some or all information on disclosure reports before releasing them to the public. Also, many organizations keep confidential the names of judges who accept expense-paid trips, frustrating attempts to verify disclosure reports. Ethics experts expressed surprise that such transgressions persist because court authorities reacted to earlier revelations of ethical violations with promises of reform. "It seems to be a very blatant violation of the code of judicial ethics," said Jeffrey M. Shaman, a judicial ethicist at DePaul University. Stephen Gillers, a specialist in legal ethics at New York University, said the study "goes to the heart of what a judge is understood to be." "Congress says you cannot sit [on a case] if you or your spouse owns even one share" of stock, Gillers said. "It's the law, and judges have to obey it." The findings show that new laws are needed to prevent abuse, said Douglas T. Kendall, executive director of Community Rights Counsel, a nonprofit Washington law firm that supplied The Post with documents outlining the problems. "These problems are getting worse, not better, and it's because the judiciary hasn't taken some simple steps to make them go away," Kendall said. Thomas F. Hogan, chief judge for the District of Columbia and chairman of the executive committee of the U.S. Judicial Conference, which oversees ethics issues, said in a statement that the lapses, while regrettable, are the exception, not the rule. "The judiciary will continue its already widespread efforts to educate judges on their financial disclosure requirements and will develop additional tools to assist judges in identifying potential conflicts," Hogan said. Earlier this year, Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, introduced legislation to ban privately financed trips for federal judges and make it easier for the public to identify stock conflicts. A Leahy spokeswoman said the senator raised the issue last month with the Judicial Conference. In a statement, Leahy said, "Our judges must be beyond reproach -- in appearance and otherwise." Stock Conflicts The stock conflicts found involved federal appeals judges; the study did not look at conflicts involving the much larger pool of trial-level judges. Some of the judges said they missed conflicts involving subsidiaries of companies in their portfolios. Others said they were confused by cases with multiple players or unaware of a spouse's assets. Federal law directs judges to know their financial interests so they can quickly resolve conflicts. Judge Bruce Selya of the 1st Circuit in Rhode Island held up to $15,000 in stock in the Federal National Mortgage Association in 2003 while participating in a lawsuit against the company. Selya sold the stock nine days after entering judgment in the case. Selya said he was unaware of the conflict until told by The Post, explaining that "anything that involves human beings is susceptible to error." In 1999, a similar Post study discovered that Selya had participated in three lawsuits while owning stock in one of the companies involved. Selya blamed those problems on his investment manager, who the judge said bought stocks for his portfolio and only later supplied him with the company names. Other judges whose disclosure statements showed that they had a financial interest in litigants in their courtrooms included Eric L. Clay of the 6th Circuit in Detroit, Martha Daughtrey of the 6th Circuit in Nashville, James Dennis of the 5th Circuit in New Orleans, John Coffey of the 7th Circuit in Milwaukee (two cases) and Harry Pregerson of the 9th Circuit in Woodland Hills, Calif. Coffey said the securities in question were held in a trust overseen by his wife that primarily benefited their adult children and from which she had drawn money. The judge said he did not believe that he was required to withdraw from such cases but would do so in the future. In numerous other cases, judges' disclosure reports appear to identify conflicts of interest involving stocks, but the judges contended in interviews that no true conflicts existed because they had inadvertently misrepresented their holdings on the statements. Unreported Trips In most cases, it is impossible to independently determine whether judges are complying with the disclosure laws. That's because most organizations that give judges expense-paid trips keep the names of the judges secret. An exception is FREE, the libertarian foundation. In recent years it has listed on its Web site the names of participants in its seminars, which are held at a dude ranch and a historic railroad hotel in Montana. Hundreds of judges have attended, and officials at the private, nonprofit foundation said they pick up all costs, including airfare, for 90 percent of them. FREE estimated that food, lodging and horseback riding for one recent five-day seminar totaled $1,350 per person. Judges often bring their spouses but must pay for any additional costs incurred. When questioned, five judges who attended seminars between 2002 and 2004 acknowledged accepting free trips but not listing them on disclosure reports. Some judges said they forgot to make the entries, while others said they were unaware of the rules. Ethics experts questioned those explanations, pointing out that the annual financial disclosure forms, which the judges must sign under penalty of law, direct them to itemize each gift and reimbursement for "transportation, lodging, food." One judge who left the section blank was Peter Beer of the Eastern District of Louisiana. Beer checked a box labeled "none" on his reports for 2002 and 2004. In an interview, Beer said that FREE had paid expenses at two seminars on a tourist ranch near Yellowstone National Park. "As far as I was concerned, that was not an item that I was required to report," Beer said. "I never considered I was obliged to do that." The sponsors of the seminars disagreed. "There's no controversy over this -- it should be disclosed," said Pete Geddes, FREE's executive vice president. He called the judges' failures to make the trips public "surprising and a little frustrating." Beer said the ranch provided "pleasant surroundings" and, after the day's discussions, allowed time for hiking and other outdoor activities. Beer said he thought, but could not be sure, that his wife accompanied him on one of the trips. Beer should have been on notice about his legal duty to disclose the gifts, Kendall said. A study by The Post in 2000 found that Beer had failed to disclose an earlier FREE trip. Some ethics experts said the lapses were especially striking because the FREE seminars have become controversial in recent years after questions about their content were raised by Community Rights Counsel. The law firm argues that FREE tilts its seminars to emphasize views favorable to the foundation's corporate backers, something FREE and many judges adamantly dispute. Other judges who acknowledged accepting expense-paid trips but failing to disclose them included David Sentelle of the District of Columbia Circuit Court, Gerald Bard Tjoflat of the 11th Circuit Court in Atlanta, Dudley H. Bowen Jr. of the District Court in Augusta, Ga., and Malcolm Howard of the District Court in Greenville, N.C. Judges who did not respond to inquiries about their attendance at the seminars included Vanessa Gilmore of the district court in Houston, Donald E. Walter of the district court in Shreveport, La., and Judith M. Barzilay of the U.S. Court of International Trade in New York. None disclosed the trips in their annual reports.
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A Feast
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