[ql06] ETHICS: More Hunting for Scalia
- From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Fri, 27 Feb 2004 15:46:24 +0100
=C2=A0Published on Friday, February 27, 2004 by the Los Angeles Times=20
Scalia Took Trip Set Up by Lawyer in Two Cases
Kansas visit in 2001 came within weeks of the Supreme Court hearing=20
arguments.
=20
by Richard A. Serrano and David G. Savage
WASHINGTON =E2=80=94 Supreme Court Justice Antonin Scalia was the guest of =
a=20
Kansas law school two years ago and went pheasant hunting on a trip=20
arranged by the school's dean, all within weeks of hearing two cases in=20
which the dean was a lead attorney.=20
The cases involved issues of public policy important to Kansas=20
officials. Accompanying Scalia on the November 2001 hunting trip were=20
the Kansas governor and the recently retired state Senate president,=20
who flew with Scalia to the hunting camp aboard a state plane.=20
Two weeks before the trip, University of Kansas School of Law Dean=20
Stephen R. McAllister, along with the state's attorney general, had=20
appeared before the Supreme Court to defend a Kansas law to confine sex=20
offenders after they complete their prison terms.=20
Two weeks after the trip, the dean was before the high court to lead the=20
state's defense of a Kansas prison program for treating sex criminals.=20
Scalia was hosted by McAllister, who also served as Kansas state=20
solicitor, when he visited the law school to speak to students. At=20
Scalia's request, McAllister arranged for the justice to go pheasant=20
hunting after the law school event. And the dean enlisted then-Gov.=20
Bill Graves and former state Senate President Dick Bond, both=20
Republicans, to go as well.=20
During the weekend of hunting in north-central Kansas, Graves and Bond=20
said in separate interviews recently, they did not talk about the cases=20
with Scalia, nor did they view the trip as a way to win his favor.=20
Scalia later sided with Kansas in both cases.=20
In a written statement, Scalia said: "I do not think that spending time=20
at a law school in which the counsel in pending cases was the dean=20
could reasonably cause my impartiality to be questioned. Nor could=20
spending time with the governor of a state that had matters before the=20
court."=20
Earlier this year, the Los Angeles Times reported that Scalia had been a=20
guest of Vice President Dick Cheney on Air Force Two when they went=20
duck hunting in southern Louisiana. That trip came shortly after the=20
high court had agreed to hear Cheney's appeal seeking to keep secret=20
his national energy policy task force.=20
The details of the Louisiana hunting trip, coupled with the visit to=20
Kansas, provide a rare look at a Supreme Court justice who has=20
socialized with government officials at times when legal matters=20
important to them were before the high court.=20
=46ederal law says that "any justice or judge shall disqualify himself in=20
any proceeding in which his impartiality might be questioned." By=20
tradition and court policy, justices are free to determine for=20
themselves what constitutes a conflict.=20
Specialists in legal ethics differed on whether the Kansas trip=20
presented a conflict of interest for Scalia.=20
"When a case is on the docket before a judge, the coziness of meeting=20
privately with a lawyer is questionable," said Chicago lawyer Robert P.=20
Cummins, who headed an Illinois board on judicial ethics. "It would=20
seem the better part of judgment to avoid those situations."=20
Added Monroe Freedman, who teaches legal ethics at Hofstra University:=20
"A reasonable person might question this, and that's the problem." He=20
said Scalia "should have rescheduled the trip until after" the cases=20
were over.=20
Other experts noted, however, that no one who met Scalia in Kansas was a=20
named litigant in the two cases, in contrast to the trip with Cheney,=20
who is the appealing party in the upcoming energy task force case.=20
"I'm not troubled by this because of the law school setting," said=20
Stephen Gillers, a New York University law professor. He said he saw no=20
problems with the hunting trip. "The dean was an advocate, not the=20
litigant."=20
Scalia said that if Supreme Court justices were prohibited from taking=20
such a trip, then they "would be permanently barred from social contact=20
with all governors, since at any given point in time virtually all=20
states have matters pending before us."=20
Since the two sex-offender cases in 2001, the state of Kansas has not=20
had any matters argued before the high court.=20
Scalia said he accepted an invitation to the law school "sometime before=20
October 2000."=20
"I had worked for a couple of years on getting him to come here. And he=20
asked whether there was any good hunting," McAllister said. "He said he=20
had hunted turkey and deer, but not pheasant, so that was appealing."=20
In the spring of 2001, the high court voted to hear both Kansas cases,=20
and they were set for argument that fall. McAllister said he called to=20
alert Scalia that he would be arguing the two Kansas cases before the=20
court at about the same time as the justice's scheduled trip.=20
McAllister said Scalia responded that he would come as scheduled, and=20
that he would not accept a speaking fee and would pay for his own=20
hunting.=20
On Oct. 30, 2001, two weeks before the trip, McAllister and state Atty.=20
Gen. Carla Stovall appeared before Scalia and the other Supreme Court=20
justices in the case of Kansas vs. Crane.=20
The case tested whether the state could continue to hold sex offenders=20
after they had completed their prison terms. The two Kansas attorneys=20
argued that inmates likely to be a danger should be kept in custody.=20
Scalia arrived in Kansas on Nov. 15, 2001. He addressed a class and=20
spoke to law students, and attended a reception with local judges and=20
lawyers.=20
"We kept him busy," the dean said. "And the students really loved it.=20
It's also a good change from Washington for the justices."=20
The University of Kansas, a state school, paid for Scalia's flight,=20
meals and lodging, according to Scalia's financial disclosure=20
statement.=20
The next day, the dean dropped the justice off at the airport in=20
Lawrence, Kan., where he met the governor and the former state Senate=20
leader.=20
Bond, a 14-year state senator who retired at the end of 2000 as=20
president of the Kansas Senate, said he spoke with McAllister before=20
Scalia came to Kansas. "He was bringing out Scalia and he said Scalia=20
really wanted to go pheasant hunting," Bond recalled.=20
"He said he [McAllister] couldn't go because he was going to have a case=20
before the court and it would be inappropriate. He said he had no=20
problem with bringing him in and having him speak to students, but that=20
he could not go out and socialize with him."=20
Bond spoke to Graves. The former governor, in a separate interview, said=20
he was honored to have the chance to go hunting with a Supreme Court=20
justice.=20
Graves said he and Bond decided to take Scalia to the Ringneck Ranch=20
near Beloit, Kan., which was owned by Keith Houghton, a friend of the=20
governor.=20
Graves said they flew from Lawrence on the governor's official plane,=20
which he described as a King air prop, and returned on the same plane=20
after hunting. Scalia reimbursed the state $121.87 for the round trip.=20
"The controlled shooting part of the trip was good," Graves said. "They=20
plant birds, and that gives you a better attempt to get some birds."=20
Added Bond of Scalia, "We stayed the night and had a delightful time. He=20
was just charming to be around."=20
Bond said that because the trip was two months after the Sept. 11=20
terrorist attacks, Scalia had told them in advance that he did not=20
think it wise to fly from Washington with his own firearm. So, Bond=20
said, "I loaned Scalia a gun. I have plenty."=20
Graves and Bond said the two court cases never came up during the trip.=20
"There was no conversation along those lines," Graves said.=20
Added Bond, "The cases were never discussed or mentioned. Zero."=20
However, both officials said the legal matters were critically important=20
to the state, or they would not have expended the money and effort to=20
take them to the Supreme Court.=20
The two also said they did not see a conflict in socializing with the=20
justice while the legal matters were pending.=20
"It's kind of a stretch to tie that together," Graves said.=20
When the trip was winding down, Bond recalled, "Graves and I told him we=20
would like him to be our guest and pay his way, and he said no."=20
Houghton, the ranch owner, said Scalia wrote a personal check for=20
"several hundred dollars" to cover his hunting, meals and lodging at=20
the camp. "Once he realized that we were a commercial institution, he=20
made a point that he had to pay for this," Houghton said.=20
To commemorate the trip, Houghton said, they took several photographs of=20
the justice =E2=80=94 including one that now hangs in a large frame at the=
=20
camp.=20
After Scalia returned to Lawrence, McAllister said, the dean and others=20
associated with the law school took the justice to dinner.=20
Two weeks after hosting Scalia, the law school dean was back in=20
Washington to argue on behalf of Kansas in a case called McKune vs.=20
Lile. That case tested whether Kansas could force sex offenders to=20
confess all their past sex crimes as part of prison treatment.=20
Robert Lile, an inmate, argued that the state policy would force him to=20
incriminate himself. A federal district court and appeals court agreed,=20
and Kansas was asking the high court to overturn those rulings.=20
During the oral argument, Scalia questioned whether the inmate had a=20
constitutional basis for his complaint. "Your client had been deprived=20
of no liberty to which he was entitled, not a single liberty to which=20
he was entitled," he told Lile's lawyer, Matthew J. Wiltanger.=20
The Supreme Court sided with Kansas in both cases, with Scalia voting on=20
McAllister's side each time.=20
In January 2002, the high court said in a 7-2 ruling in Kansas vs. Crane=20
that state officials could hold sex criminals beyond their prison terms=20
if they prove the convicts had a "serious difficulty" in controlling=20
their behavior.=20
Scalia dissented, but not because he opposed the Kansas law. The court,=20
he said, should have given the state even greater freedom to hold sex=20
offenders. The ruling "snatches back from the state of Kansas a victory=20
so recently awarded," he wrote, referring to a Supreme Court decision=20
allowing the state to hold certain inmates indefinitely.=20
In the second Kansas case, the court in a 5-4 ruling said state prison=20
authorities could compel inmates to confess to past crimes as part of a=20
treatment program, and they could take away privileges from those who=20
refused.=20
The lawyers who lost the two Kansas cases said that while they were=20
curious about the law school visit and the hunting trip, they never=20
expected to win Scalia's vote in the first place.=20
"I trust that Justice Scalia would have stepped aside had his ability to=20
rule been compromised by his hunting trip in the state," Wiltanger=20
said.=20
Back in Kansas, Bond and Graves said Scalia had earned their respect as=20
a marksman. At one point in the field, the hunters were surprised by a=20
quail, and Scalia shot the bird in midflight.=20
"He came back with a bag full of birds," McAllister said, "cleaned and=20
packed in ice, ready to take back on the plane to Washington."=20
*=20
Justice Scalia's Statement=20
The following statement was issued by Supreme Court Justice Antonin=20
Scalia in response to a Los Angeles Times inquiry about his 2001 trip=20
to Kansas:=20
I was not the guest of Stephen McAllister, but of the University of=20
Kansas Law School. The invitation, in fact, had come not from Stephen=20
McAllister but from his predecessor as dean of the law school, Michael=20
Hoeflich. That invitation was issued in December of 1999 and accepted=20
(by phone) some time before October of 2000 =E2=80=94 long before the Octob=
er=20
and November, 2001, cases you refer to were on our docket. My travel=20
expenses to Lawrence were reimbursed by the University of Kansas, not=20
by the state. I flew with the governor and others on the governor's=20
plane from Lawrence to Beloit and back, and promptly reimbursed the=20
state of Kansas for the cost.=20
I do not think that spending time at a law school in which the counsel=20
in pending cases was the dean could reasonably cause my impartiality to=20
be questioned. Nor could spending time with the governor of a state=20
that had matters before the court. Indeed, if the latter were so,=20
Supreme Court justices would be permanently barred from social contact=20
with all governors, since at any given point in time virtually all=20
states have matters pending before us, either in accepted cases or in=20
petitions for certiorari [or requests for the court to hear a case].=20
=C2=A9 Copyright 2004 Los Angeles Times=20
###
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