|
| www.courtinginfluence.net | back to regular view |
Financial Disclosure
|
Federal Judges and the Ethics in Government Act By Andy Isaacson In 1999, as the Internet was coming of age, a group of veteran journalists sat around a newsroom in lower Manhattan dreaming up things that hadn't been done before. It occurred to the staff of APBnews.com, a nascent online news organization covering criminal justice, that no one had collected the financial disclosure forms for federal judges across the 94 district courts and 13 circuit courts of appeal, and made them easily available to the public. "So I called up the administrative office of the U.S. Courts [in Washington, DC] and asked if I could have copies of the disclosure forms for all the federal judges and put them on the Internet," recalls Bob Port, then-editor of APBNews.com, now a staff writer at the New York Daily News. "I think they had a heart attack." Their request touched a raw nerve; this wasn’t, in fact, the first time the Courts had been asked for judges’ financial disclosure statements. APB was building off ground laid by The Kansas City Star, led by reporter Joe Stephens, which a year earlier had published a historic investigation on financial conflicts of interest of federal district court judges across four districts nationwide. After obtaining from the U.S Courts administrative office the first wave of financial statements of federal court judges needed for its investigation, The Star faced stiff resistance to further requests from the Courts when it expressed that it intended to post online the financial disclosure forms of Kansas and Missouri federal judges. This unprecedented and unfamiliar action troubled the federal judiciary, but Stephens succeeded in breaking down for the first time the barrier between judges' financial information and the public. Building on The Star's important efforts, APB attempted to go a step further and sought financial disclosure forms for all federal judges, which the 1978 Ethics in Government Act requires members of the judiciary to submit, detailing sources of income, businesses owned, positions held, free trips and debts. (The 1978 act imposed the same requirements on members of Congress and other top federal officials). Passed as part of an overall effort to bring more transparency to Washington in the wake of Watergate, the disclosure regimen for judges was intended to reveal - and hopefully discourage - potential conflicts of interest between judges' financial holdings and their decisions on the bench. But APB was forced to navigate through two provisions in the 1973 Ethics Act that would complicate their request. In 1998, in the wake of The Kansas City Star investigation, the Judicial Conference - the principle policy-making body for the federal court system - pushed an amendment through Congress that enabled federal judges to redact (black out) information on their forms which they felt could be used to threaten their or their families' personal security. As a result, the public enjoys much more access to the financial disclosure forms submitted by members of Congress and senior executive branch officials than it does to the judiciary - which has, arguably, greater power over a longer period to shape the interpretation of federal law than any elected official. According to critics and legal scholars, those two provisions have enabled judges to avoid serious scrutiny of potential conflicts of interest arising from their personal financial ties. The request by APB News touched off months of "fussing and arguing" with the federal judiciary over administrative costs and other bureaucratic obstacles. The Courts' resistance focused on APB's expressed determination to post the financial information online. According to Bob Port, the Chairman of the U.S. Judicial Conference's financial disclosure committee at the time, Judge William J. Zloch, privately ordered the administrative staff not to release the forms. Citing the 1973 Ethics Act that granted judges the right to know and approve who was requesting and viewing their form, the committee passed a new rule prohibiting the posting of financial disclosure forms on the Internet, where the ultimate viewer is unknown. Outraged, APB News began a lobbying campaign to sympathetic members on the Senate Judiciary Committee, and then filed an ambitious lawsuit against the entire federal judicial system arguing that the move against them abridges the First Amendment's right of access protections and the Fifth Amendment's equal protection and due process provisions. "They were worried that they would lose control over who can see these things and when," said Port. The controversy eventually became an embarrassment for the Courts. Chief Justice William H. Rehnquist, who chairs the U.S. Judicial Conference, issued a memo approving release of the forms. Soon afterward, financial woes forced APB News into bankruptcy, and the newsroom closed its doors just days before boxes began arriving from the administrative office of the U.S. Courts. "Lawyers would have used that website day in and day out," said a rueful Port. The Center for Investigative Reporting is updating and expanding upon these previous efforts by making the financial disclosure forms of judicial nominees from the current administration easily accessible to the public on this site. The aim is to shed light on the financial baggage that judges take with them to the bench. The financial data collected on Courting Influence is the result of a year's worth of disclosure form requests submitted by the Center for Investigative Reporting (CIR) to the Committee on Financial Disclosure. CIR's investigation into the financial interests of 59 federal judges nominated by the Bush Administration suggests that an unprecedented number of judicial nominees have built a career representing the interests of particular industries whose fate they could very well be deciding from the bench. We found that many federal judges between 2001 and 2004 had former lives as lobbyists and lawyers representing the interests of entire industries (such as coal, energy and mining), suggesting a web of financial and professional entanglements that could pose a conflict of interest when a case lands in a judge's court from one of those same industries. Our assessment also suggests that current guidelines governing the redaction of information from disclosure forms and the standards for recusal lack the clarity or breadth to prevent abuses of the current system. Redaction The redaction provision passed in 1998 is in place through 2005, when Congress will vote on whether to make it permanent. To assist in its deliberations, the Government Accountability Office examined disclosure reports from 1999 through 2002. The GAO's study, released in June 2004, found that in recent years the Financial Disclosure Committee of the U.S. Judicial Conference deleted information deemed harmful from 592 financial disclosure forms - and in 55 of those instances deleted all financial data, including details about outside income, business contracts, stocks and the value of holdings. The GAO recommended that more firm guidelines and standards be imposed to clarify the security standards for redaction and to limit abuses of the system. Jeffrey Shaman, a professor of judicial ethics at DePaul University College of Law in Illinois, finds the high number of judges redacting all information on financial disclosure forms troublesome. "The ability to redact," says Shaman, "is supposed to protect judges. But it would seem that on the face of it judges are using this to cover up their financial holdings because it might be embarrassing." The GAO also found that delays in responding to requests for the disclosure forms by members of the public-averaging 73 days - effectively put the information out of the range of relevance to attorneys and journalists who might find the data of interest. Recusal The central issue at stake in releasing these forms is identifying when a judge may find him or herself with a potential conflict of interest - and the level of knowledge a legal claimant may have as they enter into the courtroom to argue their case. As the courts are used increasingly to interpret and rewrite controversial environmental, public health and safety laws, concern over the lack of clear standards for recusal has grown in the legal and legal watchdog communities. In 1974, Congress established that judges must recuse themselves from a lawsuit when there exists actual bias or even when impartiality "might reasonably be questioned." Disqualification, the statute defined, includes situations where a judge maintains a financial interest - "however small" - in one or another party to the legal proceeding. In his statement granting APBNews.com the right to post judicial financial disclosure forms online, Chief Justice William H. Rehnquist said that "a judge should recuse himself whether he holds one share or a thousand shares of stock in a corporation that is party in a case before his court." That definition, however, does not include a lifetime of professional affiliations - as counsel or lobbyist - to a particular industry or interest group, a factor which has been a key part of the financial history of a significant portion of the current administration's nominees. Each judge retains the power to decide whether his or her level of financial engagement is worthy of self-recusal. But due to the difficulties in obtaining information (the GAO found that accessing the annual financial disclosure reports that federal judges are required to file is cumbersome), lawyers are frequently unaware of potential conflicts of interest posed by judges' financial ties. With corporations today entangled in networks of mergers and subsidiaries, a judge, too, may be unaware of whether a stock holding contains a conflict. While many federal judges do keep more up-to-date lists of their financial interests for use by court clerks in assigning cases, most courts don't make these "recusal lists" available to the public, viewing them as private information. U.S. District Courts in West Virginia and Iowa are among the few courts in the federal system that make these recusal lists accessible, posting them on their Web sites. U.S. District Court Judge Mark Bennett for the Northern District of Iowa, who decided to make financial holdings of the judges within that district online, says that "nobody wants a conflict, even judges. I hope this shows that we take conflicts seriously and that we do everything we can to make sure we're not sitting in a case that has a conflict." Indeed, there are numerous reported instances of such conflicts: the extensive study conducted in 1998 by Kansas City Star reporter Joe Stephens, now at The Washington Post, found that federal judges around the country repeatedly had presided over lawsuits involving companies in which they held stock. During Congress' most recent inquiry into this matter, in November 2001, Judge William Osteen, chair of the Judicial Conference Committee on Codes of Conduct, testified to the House Judiciary Committee that several studies of judicial decision-making had concluded that there were almost a hundred instances in which judges had adjudicated cases involving companies in which they had a financial interest. Judge Bennett made his decision to post his district's judges' recusal lists online in the wake of the Kansas City Star investigation. "We thought it would be a service to the parties involved in a case, and that can help us find any potential conflicts we might not know about on our own." His court, however, remains an exception to the rule. Current Initiatives The U.S. Judicial Conference contends that failure to recuse is not a pervasive matter and is trying to tighten controls to prevent oversights by individual judges. To help courts keep track of judges' financial conflicts of interest - which for some judges includes long lists of stock holdings - the Judicial Conference's Committee on Codes of Conduct is promoting the use of new Conflict Screening Software. In 2001, the software - which compares a judge's financial interests and affiliations to parties, attorneys, and law firms on the court's docket - was implemented in federal bankruptcy courts, and a version for district courts is being installed in 2004. Currently, the American Bar Association - at the urging of legal activist groups - is considering revising language in its Model Code of Judicial Conduct that would require judges to keep comprehensive recusal lists and make these lists easily available to litigants (without advance notification of the judge) at the court clerk's office. Although ABA's Model Code is not binding, states and federal courts generally adopt their ethics rules. In October 2004, the ABA recommended new ethics restrictions, including a $50 limit for some gifts and a requirement that judges disclose free trips - which some critics label as "junkets" - every three months. Trips that would "cast reasonable doubt" on a judge's impartiality, the panel decided, would be unacceptable. A bill introduced by Senator Patrick Leahy (D-VT) - the Fair and Independent Judiciary Act of 2003 - would have required judges to maintain these recusal lists, but it gained little support from the Senate Judiciary Committee and failed to pass. Next year, Congress is expected to consider whether to extend the provisions allowing the redaction of financial disclosure reports beyond February 2005. Requesting Financial Disclosure Forms The form to request a judge's financial disclosure statement is available on the U.S. Courts website. Available records generally date back six years. Any request to view a judge's disclosure form must be made in writing to the Judicial Conference's administrative office in Washington. Forms should be sent by mail or fax to: Committee on Financial Disclosure 2-301 1 Columbus Circle, NE Washington, DC 20544 202-502-1899 (fax) 202-502-1850 (tel) It generally takes two weeks to process a request, at which time a letter will be sent to the applicant explaining how much it will cost in administrative fees to process the request. U.S. Judicial Conference regulations require that the judge whose form has been requested must be informed of the name and occupation of the person making the request before the information is released. |