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-- Canon 2, Model Code of Judicial Conduct 

Another Conflict of Interest Uncovered
On August 6, 2004, the Community Rights Counsel (now, Constitutional Accountability Center) led by Douglas T. Kendall, filed a complaint with the U.S. Court of Appeals for the Fourth Circuit against Federal District Judge Andre M. Davis.  The complaint alleged that Judge Davis was violating 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 corporation-sponsored organization that hosts seminars for judges at resort locations and uses that platform to voice its disapproval of government regulation of industry, and to advance its agenda for "free-market environmentalism."

On February 28, 2005, Judge Davis requested that the Committee on Codes of Conduct of the Judicial Conference of the United States issue an opinion on Kendall's complaint, and on March 30, 2005, the committee stated in its opinion that "continued service on the FREE board in the future is inconsistent with Canons 2 and 5 of the Code of Conduct."  Judge Davis and two other federal judges subsequently resigned from FREE's Board of Directors, although that did not prevent other judges from replacing them on that board, including Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, Louisiana.  The Codes of Judicial Conduct are advisory only and can be ignored with impunity because no mechanism presently exists for their enforcement.

The Committee on Codes of Conduct's opinion would have remained hidden from public view had it not become part of a public record during Confirmation Hearings on Federal Appointments by the Senate Judiciary Committee on April 29, 2009, when Judge Davis' elevation to Circuit Judge was being considered.  Judge Davis now sits on the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia.

“Because you are serving on the board of FREE, there is no practical way to disassociate yourself from the policies advanced by FREE...”
-- Judicial Conference of the United States,
to Judge Andre M. Davis, March 30, 2005

Federal judges urged to quit private group's board
December 10, 2010

WASHINGTON — Three prominent federal appellate judges are on the board of an anti-regulation group that provides free seminars and trips to judges, although an ethics opinion says such service violates judicial rules designed to avoid favoritism.

One of the judges is Edith Brown Clement of the 5th U.S. Circuit Court of Appeals in New Orleans, who was on President George W. Bush's short list for a Supreme Court nomination in 2005. The others are the current and prior chief judges for the Cincinnati-based 6th U.S. Circuit Court of Appeals, Alice Batchelder and Danny Boggs.

The three judges are board members of the Montana-based Foundation for Research on Economics and the Environment, or FREE. The group advocates voluntary action to protect the environment instead of government regulation. It receives most of its money from foundations and corporations but says it uses no corporate money for seminars it runs for federal judges, law professors and others, usually at Western resorts.

The ethics opinion, written by a federal judge, says "impartiality reasonably could be questioned in environmental cases" if a judge serves on FREE's board.

The Constitutional Accountability Center, a liberal interest group in Washington, sent copies of the opinion to the three judges Thursday and called on them to resign as FREE board members.

None of the judges returned telephone and e-mail messages left by the Associated Press on Thursday.

FREE Chairman John Baden said he is sure the judges are aware of the ethics opinion. "Of course they knew about it," Baden said in a telephone interview.

Another federal judge, Andre Davis, who now sits on the 4th U.S. Circuit Court of Appeals in Richmond, Va., quit the board in 2005 after he sought and received an opinion from the federal judiciary's Committee on Codes of Conduct. Two other judges resigned at the same time.

The opinion was widely circulated to the general public for the first time this week, although the AP first reported on it in 2008 before the full text was public.

The six-page opinion from U.S. District Judge Gordon Quist of Grand Rapids, Mich., then the code of conduct committee chairman, advised Davis that "because you are serving on the board of FREE, there is no practical way to disassociate yourself from the policies advanced by FREE."

Quist said Davis' impartiality may be questioned "because FREE espouses particular points of view on contentious public issues frequently before the courts, and you as a board member would reasonably be perceived as personally supporting these positions."

He said another problem stemmed from lending "the prestige of your office to advance the interests of FREE" because the group's website prominently displays the name, title and photograph of board members.

Davis resigned quickly after receiving the private, advisory opinion by letter. He acknowledged its existence in an unrelated court matter and discussed it more fully during his Senate confirmation hearing after President Barack Obama nominated him to the appeals court in 2009.

Boggs previously faced an ethics complaint over his membership on the FREE board from a liberal-leaning advocacy group, the Community Rights Counsel. Doug Kendall, who headed the CRC, is now president of the group that called for the resignations Thursday.

Judge James Loken of the 8th U.S. Circuit Court of Appeals in St. Louis dismissed the complaint against Boggs in May 2005, finding nothing to substantiate charges that the judge's service on FREE's board created an appearance of impropriety.

Although Loken's ruling was issued more than a month after Quist sent his letter to Davis, Loken made no reference to the judicial conduct panel's opinion. Loken did cite earlier advisory opinions but it is unknown whether he was aware of the Quist opinion at that time.

Loken did not return messages Thursday.

Baden, the FREE chairman, pointed to Loken's order dismissing the complaint against Boggs to defend the judges' continued presence on FREE's board.

Copyright 2010, Associated Press

From: Mark Sherman, "Federal judges urged to quit private group's board," The Fresno Bee, Fresno, California, December 10, 2010, http://www.fresnobee.com/2010/12/10/v-print/2192568/federal-judges-urged-to-quit-private.html, accessed 12/11/10.

  1. "CAC Asks Three Federal Judges to Resign From FREE's Board of Directors, Citing Ethics Opinion" [News Release], Constitutional Accountability Center, Dec.10, 2010, http://www.theusconstitution.org/page_module.php?id=28&mid=63, accessed 12/11/10.

  2. "Code of Conduct for United States Judges," http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf, accessed 12/11/10.

  3. Foundation for Research on Economics & the Environment, http://www.free-eco.org/index.php, accessed 12/11/10.

  4. Confirmation Hearings on Federal Appointments: Hearings Before the Committee on the Judiciary, One Hundred Eleventh Congress, First Session, April 29, May 12, June 24, 2009, Serial No. J-111-4, Part 2.

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