roundtable: Minneapolis Star Tribune-Judges take trips funded by West (fwd)
roundtable: Minneapolis Star Tribune/Judges take trips funded by West (fwd)
Minneapolis Star Tribune/Judges take trips funded by West (fwd)
James Love (love@Essential.ORG)
Tue, 7 Mar 1995 14:55:50 -0500 (EST)
Date: Tue, 7 Mar 1995 14:55:50 -0500 (EST)
From: James Love <love@Essential.ORG>
Subject: Minneapolis Star Tribune/Judges take trips funded by West (fwd)
To: roundtable <roundtable@cni.org>
Message-Id: <Pine.3.85.9503071449.F7803-0100000@essential>
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
March 7, 1995
NOTES FROM THE MARCH 5, 1995 MINNEAPOLIS STAR TRIBUNE
ARTICLE ON FEDERAL JUDGES TAKING TRIPS PAID FOR BY WEST
PUBLISHING, WHILE DECIDING CASES INVOLVING WEST
james love (202/387-8030; love@tap.org)
The following are some notes on the Minneapolis Star Tribune's
(MST) March 5, 1995 story about members of the Supreme Court
accepting expensive trips paid for by West Publishing. The
Article was written by Sharon Schmickle and Tom Hamburger, who
work in the Washington Bureau of the newspaper. The trips are
connected with the Devitt Award, which is a prize given to
federal judges. West sponsors the Devitt Award, which includes a
$15,000 cash gift and other benefits. The award is given for
"distinguished service to justice."
TAP reported on the Devitt Award in November 9, 1993, on TAP-INFO
(available from the TAP gopher, at tap.org). While TAP has
continually raised objections to the award itself, the MST's
article raised a number of new and disturbing questions about the
selection committee, which is made up of federal judges,
including seven members of the Supreme Court over the past twelve
years. Here are a few notes on how the Devitt Award works, taken
from the March 5, MST story:
1. The Devitt Award isn't run through an endowment. West
It funds and manages the award.
2. West effectively chooses the selection committee which in
turn will chose the winner. For ten years, until his death
in 1992, Judge Devitt, a Minnesota judge, served on the
Committee, and was the person who extended the invitations
to serve on the Committee. Judge Devitt was a personal
friend of Dwight Opperman, and, according to the story, set
up meetings with government officials for Opperman, and even
sent him an internal court memorandum concerning which
online service court personnel should use.
3. Devitt contacted the members of the selection committee, and
told them that West will pay everything, and expects the
judges and their spouses to travel first class. Judges were
told by Devitt that the accommodations will be very good,
and that the work will be minimal, and it will be a "nice
break" from the court routines. The selection committee
included one Supreme Court Judge, Devitt, and one judge from
the Circuit Courts, until Devitt dies. After Devitt died,
he was replaced by other District Court judges.
4. West places ads asking for nominations. Nominations are
sent to a P.O. Box set up by West. West reads the letters,
and prepares brochures for each candidate, which include
background information. No doubt they contact the nominees
for some help here, letting them know they are in the
running. [TAP note: Lawyers who want to flatter judges
often make nominations.]
5. The first Supreme Court judge who served is Byron White. In
1983, the selection committee met in Palm Springs, where
Justice White, a former professional football player, could
have a reunion with Johnny Blood McNally, an old coach who
lived nearby. Dwight Opperman attends the retreat, but not
the meeting to select the "Winner." In 1984, White was
consulted about the location of the next meeting, and Devitt
wrote to Opperman to say that White "was not to enthused
about Florida. We discussed San Diego, but I pointed out to
him that this place is not a warm spot in January or
February." Palm Springs was selected again, and Devitt
wrote to White to say "Dwight wants to have Johnny Blood
McNally join us for recreation as before."
6. In 1984, Justice Powell took White's place, and wrote to
Devitt to say "Caneel Bay is a place my wife Jo and I always
have hoped to visit. This would have our warm approval."
And suggested a fall meeting, a "lovely time of the year."
Dwight Opperman set the fall 1984 meeting "at the exclusive
resort on St. John in the Virgin Islands. In 1986, Powell
traveled to Palm Beach, Florida, along with Judge James
Browning from the 9th Circuit and two west Executives.
Powell wrote to Dwight Opperman to say how much his wife and
he had enjoyed the gathering. Three weeks later Justice
Powell and others rejected a petition to the court from the
city of Phoenix regarding a tax matter involving West
Publishing.
7. A few weeks later, Powell and White were invited to a third
trip, for a "special" advisory board committee meeting,
which was eventually set (after an exchange of letters) for
the Ritz-Carlton in Laguna Niguel, California, which has a
nice 18 hole golf course. On January 23, 1987, a few days
before White and Powell departed for California, they were
faced with a petition to hear West v. Mead. Neither White
nor Powell disqualified themselves from participating in the
review of the petition. On January 27, the court rejected
Mead's petition to overturn a 2 to 1 decision written by
Judge Arnold of the 8th circuit court, giving West a
copyright over its "interior page numbers," which Mead
wanted to use in LEXIS. One week later Powell and White
joined Dwight Opperman and others at Laguna Niguel. The
gathering began on Saturday and ended on Tuesday, but only
involved one morning of work, with the rest devoted to golf,
"free time" and dinning.
8. On February 7, 1987, Justice William Brennan, his wife Mary,
the Oppermans, Judge Devitt, and 5th Circuit Judge Charles
Clark met in Honolulu for a Devitt Award Selection Committee
meeting. Justice Brennan had been asked by Devitt to attend
the Hawaii meeting in 1986, before the Mead petition reached
the court. Brennan did not disqualify himself from
deliberations over the case. Brennan later met with the
Oppermans for dinner in Minnesota during a visit to the Mayo
Clinic, and in 1988, Brennans traveled to Naples Florida for
a stay at the Ritz Carlton, for a Devitt selection
committee. Brennan was asked to approach Rehnquist to take
the next two year term, and when Rehnquist declined, Brennan
wrote to Opperman, asking "have you anyone else in mind?"
That someone else was Sandra O'Connor, who traveled to
California twice for Devitt Selection meetings, in 1989 and
1990. Five days before she left for Los Angeles to meet
with Devitt and Opperman at the Bel Air Hotel, O'Connor and
other judges rejected a petition from the State of Texas in
a dispute with West Publishing, involving who "owns" the
rights to the Texas statutes. O'Connor failed to disclose
the trip on her annual financial disclosure forms.
9. In February, 1990, Justice John Paul Stevens was invited to
serve on the Devitt Selection Committee. Dwight Opperman
wrote the Justice to ask if he and his wife preferred golf
or tennis, to which Stevens replied "we are both interested
in tennis and golf." In January 1991, Stevens and his wife
joined Opperman and others at the Ritz-Carlton in Naples,
Florida. Judge Devitt's room charge was $700 per night. In
May 1991, Devitt wrote to Stevens asking where they might
meet next. The meeting was set for the Paradise Island
Resort & Casino in Nassau, the Bahamas. Judge Holloway,
from the 10th Circuit Court, reported that West paid
"lodging, food, entertainment and miscellaneous courtesies."
Judge Devitt died on March 2.
10. Justice Scalia was contacted in 1991 about serving on the
Devitt Selection committee, and had written to Devitt "that
he and his wife, Maureen, `look forward to a warm meeting
place-- although we will leave the selection to you.'" In
January 1993 that meeting took place in Los Angeles. Judge
William Bauer, from the 7th Circuit, reported that West paid
for $7,700 in expenses for travel and lodging for a three
day trip.
11. The MST did not determine what happened in 1994, given a
lack of cooperation from West or the Supreme Court, but in
January, 1995, Justice Anthony Kennedy meet with the Court
at the Four Seasons Hotel in New York City. Also on the
Selection Committee was Judge Arnold from the 8th Circuit
Court, who has wrote the majority opinion in West v. Mead,
that had been upheld by the Supreme Court in 1987. Judge
Arnold gave the Star Tribune a letter from Dwight Opperman,
asking the judges if "there is some restaurant you
especially want to try," and that "there will be time for
the theater and museums. I would like to know your
interests so we can accommodate them."
COMMENT BY TAP
After reading Dwight Opperman's letter to West employees warning
them of the MST article (we had earlier been interviewed for the
story), we contacted the Supreme Court on Thursday, March 2,
1995, asking when and where Judge Kennedy met for the Devitt
selection committee. We were told by the court's public
information office to call West Publishing. We objected, saying
that we should have to not have to ask a private company for
information about the travel plans of a member Supreme Court.
The public affairs office said that regardless of our objections
we would have to contact West.
Toni House, the official Supreme Court spokesperson, refused to
return several calls to TAP. West Publishing refused to talk to
TAP about the award. Justice Arnold from Arkansas provide TAP
with complete information about the dates of the meetings, and
Judge Milton Pollack, the 1995 Devitt winner, talked with TAP
about the award, which he will receive in NYC on May 11, 1995.
Judge Pollack says he will donate the $15,000 to charity.
Not mentioned in the MST story was the FEIST case, which was
heard by the Supreme Court on January 9, 1991 and decided on
March 27, 1991, in a decision written by Justice O'Connor. The
FEIST decision threw out the so called "sweat of the brow"
doctrine for copyright, a major blow to publishers like West, and
it cited a law review article critical of the West v. Mead case,
but it did not directly cite West v. Mead, leaving the issue of
West's copyright claims somewhat ambiguous.
In addition to Judge Arnold from the 8th Circuit, the following
Circuit Court members have served on the Devitt Selection
Committee.
Wilfred Feinberg, 2nd Circuit
Charles Clark, 5th Circuit
William Bauer, 7th Circuit
James Browning, 9th Circuit
Gerald Tijoflat, 11th Circuit
Judge Tijoflat and Judge Bauer both actively lobbied against a
1991 proposal by the Administrative Office of the Court to create
a public database of court opinions or a public domain citation
system.
Winners of the Devitt Award, who received $15,000, an award
dinner paid for by West, travel in some cases, and other perks,
including the following federal judges. (The dates reflect the
year of the nomination. Awards are typically given at an award
dinner the following Spring). Judge Minor Wisdom of the 5th
Circuit received the Devitt Award four months after hearing
arguments on the Texas copyright case involving West. He ruled
in favor of West after receiving the award. Judge Wisdon said
the the money was used to buy a painting for his home.
DEVITT AWARD WINNERS
Supreme Court:
Warren Burger, Special Award 1983
Circuit Court of Appeals:
Edward A. Tamm, DC Circuit, Special Award 1985
Albert B. Maris, 3rd Circuit, 1982
Joesph F. Weis, Jr., 3rd Circuit, 1992
John Minor Wisdom, 5th Circuit, joint - 1988
James R. Browning, 9th Circuit, 1990
Elbert Parr Tuttle, 11th Circuit, joint - 1988
Frank M. Johnson, Jr, 11th Circuit, 1984
District Court:
Gerhard A. Gesell, Washington, DC, 1989
Walter E. Hoffman, Virginia, 1983
Edward T. Gignoux, Maine, 1986
Elmo B. Hunter, Missouri, 1987
William J. Cambell, Illinois, 1985
Hubert L. Will, Illinois, 1991
Jack B. Weinstein, New York, 1993
Milton Pollack, New York, 1994
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