This week, the Government Printing Office published the official record of the Senate Judiciary Committee’s confirmation hearing  held last year for District Judge Andre M. Davis, nominated and since confirmed to the United States Court of Appeals for the Fourth Circuit .  Included in this just-published record is a remarkable document – the  previously undisclosed March 2005 ethics opinion by the Committee on Codes of Conduct of the Judicial Conference of the United States, the  federal judiciary’s own ethics office – that a federal judge violates the Code of Conduct for United States Judges by serving on the Board of Directors of the Foundation for Research on Economics and the Environment (FREE), a Montana-based organization that takes money from corporations and hosts junkets for judges promoting what the organization calls “free-market environmentalism.”

Given this ethics opinion,  Constitutional Accountability Center has sent letters to three judges who currently serve on FREE’s Board of Directors, Judge Alice M. Batchelder (6th Circuit), Judge Danny Boggs (6th Circuit), and Judge Edith Brown Clement (5th Circuit), respectfully asking them to resign from FREE’s Board immediately.

Constitutional Accountability Center President Doug Kendall said, “This week’s publication of a heretofore hidden opinion of the federal judiciary’s Committee on Codes of Conduct makes clear that federal judges violate their Code of Conduct by serving on the Board of Directors of the Foundation for Research on Economics and the Environment. Judges Batchelder, Boggs and Clement should resign from FREE’s Board immediately.  If judges stay on FREE’s Board despite the unequivocal ruling of the Committee, then the Code of Conduct isn’t worth the paper it’s printed on.”

• Read the opinion of the Judicial Conference Committee on Codes of Conduct, published by the Government Printing Office, here: http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62198/pdf/CHRG-111shrg62198.pdf. (NOTE: the opinion is located on page 88 [internal page 76] of a more than  1,000-page pdf document.)
• A stand alone copy of the Judicial Conference Committee on Codes of Conduct opinion is here:  http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/judicial-ethics-gpo-record-of-davis-hearing-davis-opinion.pdf

• FREE’s list of current Board Members, including Judges Batchelder, Boggs and Clement: http://www.free-eco.org/staff.php (last visited December 8, 2010)
• CAC’s letter to Judge Batchelder: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Batchelder-FREE.pdf

• CAC’s letter to Judge Boggs: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Boggs-re-FREE1.pdf

• CAC’s letter to Judge Clement: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Clement-re-FREE1.pdf

BACKGROUND AND TIMELINE OF EVENTS

In 2004, CAC’s predecessor organization, Community Rights Counsel, filed  ethics petitions against four federal judges – Judge Danny Boggs (6th Cir.), Judge Andre M. Davis (then- D. Md.), Judge Douglas Ginsburg (D.C. Cir.), and Judge Jane Roth (3rd Cir.) – who were then serving on the Board  of Directors of the Foundation for Research on Economics and the Environment (FREE).  In these petitions, filed with the Chief Judge of the Circuit within which each judge sat, CRC argued that service by a federal judge on FREE’s Board violated the Code of Conduct for United States Judges and that, if the judges did not resign from FREE’s Board, the Judicial Councils should issue opinions finding that the judges’ continued service on FREE’s Board constituted a violation of 28 U.S.C. Sec. 351, which prohibits judges from engaging in “conduct prejudicial to the effective and expeditious administration of the business of the courts.”  CRC filed those petitions after an exhaustive analysis of FREE’s funding sources, the political nature of FREE, and the junketing services it provided – and still provides – to federal judges.

Months after these petitions were filed, in May 2005, Judge Davis announced his decision to resign from FREE’s Board.  The following day, Judges Ginsburg and Roth followed Judge Davis’ lead and also resigned from FREE’s Board.  Unknown to CRC at the time, however, Judge Davis’s decision to resign was not the purely voluntary action it appeared to be.  Rather, we now know that, at the insistence of Chief Judge William Wilkins of the Fourth Circuit, who was reviewing CRC’s ethics petition, Judge Davis asked the Committee on Codes of Conduct of the United States Judicial Conference (“Committee”) for an advisory opinion about the propriety of continuing to serve  on FREE’s Board.  In response, the Committee on March 30, 2005 issued an ethics opinion to Judge Davis in stark terms, stating that his service on FREE’s Board violated sections of Canons 2 and 5 of the Code of Conduct.  Having received this opinion, Judge Davis then resigned from FREE’s Board.

The reason for his resignation, however, was not made public in 2005 and neither was the Committee’s opinion.  Even after the existence of the opinion became known in 2007 during the course of a hearing on a recusal motion filed by a litigant before Judge Davis, both Judge Davis and the Codes of Conduct Committee refused to make this opinion public.  This opinion was finally produced by Judge Davis to the Senate Judiciary Committee last year as part of the confirmation process in connection with Judge Davis’ nomination to the  United States Court of Appeals for  the Fourth Circuit.  The opinion was published  for the first time in early December 2010, as part of the publication of the record of Judge Davis’ 2009 confirmation hearing.

The Opinion of the Committee on Codes of Conduct

The just-published  ethics opinion is exceptional in its clarity.  In its March 30, 2005opinion, the Committee – comprised of 15 federal judges – specifically advised Judge Davis that “your continued service on the FREE Board in the future is inconsistent with Canons 2 and 5 of the Code of Conduct.”  In particular, according to the Committee, Judge Davis’ service on FREE’s Board “violate[d] Canon 5B,” which prohibits a judge from participating in activities that “reflect adversely upon the judge’s impartiality.”  As the Committee explained, “because FREE espouses particular points of view on controversial public issues frequently before the courts, and [Judge Davis] as a Board member would reasonably be perceived as personally supporting these positions, it is the Committee’s view that [Judge Davis’] service as a Board member is inconsistent with Canon 5B of the Code.”

In addition, the Committee found that Judge Davis’ service on FREE’s Board “also [ran] afoul of Canon 2A of the Code, which requires a judge to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’”  In this regard, the Committee explained that Judge Davis’ “service on the Board of FREE [lent] prestige to FREE and allow[ed] FREE to exploit the prestige of the office.”  Among other things, the Committee noted that FREE exploited the participation of sitting federal judges on its Board by listing those judges “on its website, brochures, and letterhead,” pointedly observing to Judge Davis that “[y]our picture is displayed prominently on the website, as is your title.”

The Committee’s opinion issued to Judge Davis was not only unequivocal in its finding of a violation of the Canons, but, as noted above, clearly applicable to any other judge serving on FREE’s Board.   This plain reading of the opinion was confirmed by Judge Davis.  In written questions to Judge Davis submitted in connection with the Fourth Circuit confirmation process, Senator Russ Feingold asked if there were anything in the Committee’s opinion that was specific to Judge Davis’ circumstances or whether the opinion would apply equally to other judges sitting on FREE’s Board.  Judge Davis replied:  “I do not interpret the Committee’s opinion to depend on the identity of the judge who serves on the FREE Board.”

FREE’s  Apparent Efforts To Hide the Ethics Committee’s Opinion

Judge Davis also told the Senate Judiciary Committee, “I had advised Dr. John Baden, FREE’s Chairman, of the fact that I had requested an advisory opinion from the Codes of Conduct Committee and that I would abide by the Committee’s advice.”  All of this raises troubling questions about FREE’s candor both with the judges serving on its Board and with the public.  FREE proudly asserts on its website that Judge Boggs maintained his membership on FREE’s Board pursuant to a decision by Eighth Circuit Chief Judge James Loken that refused to take action in response to CRC’s complaint.  FREE never mentions that the Codes of Conduct Committee of the Judicial Conference – the judiciary’s definitive ethics office – had opined that service by judges on FREE’s Board was in violation of the Code of Conduct, even though Judge Davis asserts that he informed FREE of this opinion.  Is it possible that FREE has not told the two federal judges who joined its Board after Judge Davis’ resignation (Judges Clement and Batchelder) about the Committee’s opinion?

CAC’s Letters to Judges Batchelder, Boggs, and Clement

CAC’s letters sent on December 9, 2010 to Judges, Batchelder, Boggs and Clement requesting their immediate resignation from FREE’s Board provide a clear and important test of the judiciary’s willingness to comply with the Code of Conduct for United States Judges.  By its terms, the Code is binding on every federal judge in America (other than Supreme Court Justices, who have exempted themselves), but there is no effective method of enforcing the Code.  CAC’s letters give notice to Judges Batchelder, Boggs, and Clement that the Committee on Codes of Conduct has ruled, unequivocally, that service on FREE’s Board is inconsistent with the Code.  There is no more definitive statement possible on the meaning of the Code.  If these three judges stay on FREE’s Board despite this unequivocal ruling, it will raise an important question: why have a Code of Conduct if judges can ignore it with impunity?

LIST OF RESOURCES

• Constitutional Accountability Center’s  December 9, 2010 letters to Judges Batchelder, Boggs and Clement respectfully asking them to resign from FREE’s Board:

Batchelder: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Batchelder-FREE.pdf

Boggs: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Boggs-re-FREE1.pdf

Clement: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Letter-to-Judge-Clement-re-FREE1.pdf

• Code of Conduct for United States Judges: http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf
• FREE’s list of current Board Members, including Judges Alice Batchelder, Danny Boggs and Edith Brown Clement: http://www.free-eco.org/staff.php (last visited December 8, 2010)
• Opinion of the Committee on Codes of Conduct  of the Judicial Conference of the United States concluding that service by a federal judge  on FREE’s Board of Directors violates the Code of Conduct, published by the Government Printing Office:  http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62198/pdf/CHRG-111shrg62198.pdf (NOTE: the opinion is located on page 88 [internal page 76] of a more than  1,000-page pdf document.)
• A stand alone copy of the Judicial Conference Committee on Codes of Conduct opinion is here: http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/judicial-ethics-gpo-record-of-davis-hearing-davis-opinion.pdf
• Judge Davis’ letter to the Committee on Codes of Conduct  of the Judicial Conference of the United States seeking an advisory ethics opinion about membership on FREE’s Board, February 2005:  http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/judicial-ethics-gpo-record-of-davis-hearing-davis-letter-to-committee.pdf
• Judge Davis’ responses to written questions posed by Senator Feingold of the Senate Judiciary Committee:  http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/judicial-ethics-davis-written-responses-to-feingold.pdf
• Community Rights Counsel’s past research into FREE and other judicial junket providers: http://www.communityrights.org/tobacco.asp
• CRC’s 2004 ethics petitions against Judges Boggs, Davis, Ginsburg, and Roth:

Boggs:  http://www.communityrights.org/TaintedJustice/BoggsPetition.pdf

Davis:  http://www.communityrights.org/TaintedJustice/DavisPetition.pdf

Ginsburg:  http://www.communityrights.org/TaintedJustice/Petition.pdf

Roth:  http://www.communityrights.org/TaintedJustice/RothPetition.pdf

• CRC’s exhaustive past research into FREE’s corporate funding sources and funding of judicial junkets: http://www.communityrights.org/TaintedJustice/main.asp
• “Judge Ends Ethics Case By Leaving Foundation,” Washington Post, May 6, 2005: http://www.washingtonpost.com/wp-dyn/content/article/2005/05/05/AR2005050501850.html
• “Judges to Leave Environmental Group’s Board,” Washington Post, May 7, 2005: http://www.washingtonpost.com/wp-dyn/content/article/2005/05/06/AR2005050601421.html
• “Judicial Seminars Derided As Junkets Under Scrutiny,” Blog of Legal Times, January 30, 2008: http://legaltimes.typepad.com/blt/2008/01/judicial-semina.html
• Judge Loken’s ruling dismissing CRC’s complaint against Judge Boggs: http://www.communityrights.org/PDFs/Loken6-1-05.pdf
• FREE’s account of the Loken decision and Judge Boggs’ membership on its Board of Directors, omitting the Judicial Conference Committee on Codes of Conduct ethics opinion rendered to Judge Davis: http://www.free-eco.org/for_journalists.php (last visited December 8, 2010)
• For more on why corporate funding of judicial junkets is a serious issue, watch this 2001 report from the ABC News program 20/20, featuring CAC President (and former Director of CRC) Doug Kendall: http://www.tripsforjudges.org/JunketsForJudges.wmv