February 27, 2004

Scalia Took Trip Set Up by Lawyer in Two Cases: Kansas visit in 2001 came within weeks of the Supreme Court hearing arguments

"Truth shall rise again!"
Al Gore, Tennessee, February 2004

Richard A. Serrano, David G. Savage, Los Angeles
Times: Supreme Court Justice Antonin Scalia was the
guest of a Kansas law school two years ago and went
pheasant hunting on a trip arranged by the school's
dean, all within weeks of hearing two cases in which
the dean was a lead attorney.

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2004: Defeat Bush (again!)


http://www.commondreams.org/headlines04/0227-03.htm


Published on Friday, February 27, 2004 by the Los
Angeles Times
Scalia Took Trip Set Up by Lawyer in Two Cases: Kansas visit in 2001 came within weeks of the Supreme Court hearing arguments.

by Richard A. Serrano and David G. Savage

WASHINGTON Supreme Court Justice Antonin Scalia was
the guest of a Kansas law school two years ago and
went pheasant hunting on a trip arranged by the
school's dean, all within weeks of hearing two cases
in which the dean was a lead attorney.

The cases involved issues of public policy important
to Kansas officials. Accompanying Scalia on the
November 2001 hunting trip were the Kansas governor
and the recently retired state Senate president, who
flew with Scalia to the hunting camp aboard a state
plane.

Two weeks before the trip, University of Kansas School
of Law Dean Stephen R. McAllister, along with the
state's attorney general, had appeared before the
Supreme Court to defend a Kansas law to confine sex
offenders after they complete their prison terms.

Two weeks after the trip, the dean was before the high
court to lead the state's defense of a Kansas prison
program for treating sex criminals.

Scalia was hosted by McAllister, who also served as
Kansas state solicitor, when he visited the law school
to speak to students. At Scalia's request, McAllister
arranged for the justice to go pheasant hunting after
the law school event. And the dean enlisted then-Gov.
Bill Graves and former state Senate President Dick
Bond, both Republicans, to go as well.

During the weekend of hunting in north-central Kansas,
Graves and Bond said in separate interviews recently,
they did not talk about the cases with Scalia, nor did
they view the trip as a way to win his favor.

Scalia later sided with Kansas in both cases.

In a written statement, Scalia said: "I do not think
that spending time at a law school in which the
counsel in pending cases was the dean could reasonably
cause my impartiality to be questioned. Nor could
spending time with the governor of a state that had
matters before the court."

Earlier this year, the Los Angeles Times reported that
Scalia had been a guest of Vice President Dick Cheney
on Air Force Two when they went duck hunting in
southern Louisiana. That trip came shortly after the
high court had agreed to hear Cheney's appeal seeking
to keep secret his national energy policy task force.

The details of the Louisiana hunting trip, coupled
with the visit to Kansas, provide a rare look at a
Supreme Court justice who has socialized with
government officials at times when legal matters
important to them were before the high court.

Federal law says that "any justice or judge shall
disqualify himself in any proceeding in which his
impartiality might be questioned." By tradition and
court policy, justices are free to determine for
themselves what constitutes a conflict.

Specialists in legal ethics differed on whether the
Kansas trip presented a conflict of interest for
Scalia.

"When a case is on the docket before a judge, the
coziness of meeting privately with a lawyer is
questionable," said Chicago lawyer Robert P. Cummins,
who headed an Illinois board on judicial ethics. "It
would seem the better part of judgment to avoid those
situations."

Added Monroe Freedman, who teaches legal ethics at
Hofstra University: "A reasonable person might
question this, and that's the problem." He said Scalia
"should have rescheduled the trip until after" the
cases were over.

Other experts noted, however, that no one who met
Scalia in Kansas was a named litigant in the two
cases, in contrast to the trip with Cheney, who is the
appealing party in the upcoming energy task force
case.

"I'm not troubled by this because of the law school
setting," said Stephen Gillers, a New York University
law professor. He said he saw no problems with the
hunting trip. "The dean was an advocate, not the
litigant."

Scalia said that if Supreme Court justices were
prohibited from taking such a trip, then they "would
be permanently barred from social contact with all
governors, since at any given point in time virtually
all states have matters pending before us."

Since the two sex-offender cases in 2001, the state of
Kansas has not had any matters argued before the high
court.

Scalia said he accepted an invitation to the law
school "sometime before October 2000."

"I had worked for a couple of years on getting him to
come here. And he asked whether there was any good
hunting," McAllister said. "He said he had hunted
turkey and deer, but not pheasant, so that was
appealing."

In the spring of 2001, the high court voted to hear
both Kansas cases, and they were set for argument that
fall. McAllister said he called to alert Scalia that
he would be arguing the two Kansas cases before the
court at about the same time as the justice's
scheduled trip.

McAllister said Scalia responded that he would come as
scheduled, and that he would not accept a speaking fee
and would pay for his own hunting.

On Oct. 30, 2001, two weeks before the trip,
McAllister and state Atty. Gen. Carla Stovall appeared
before Scalia and the other Supreme Court justices in
the case of Kansas vs. Crane.

The case tested whether the state could continue to
hold sex offenders after they had completed their
prison terms. The two Kansas attorneys argued that
inmates likely to be a danger should be kept in
custody.

Scalia arrived in Kansas on Nov. 15, 2001. He
addressed a class and spoke to law students, and
attended a reception with local judges and lawyers.

"We kept him busy," the dean said. "And the students
really loved it. It's also a good change from
Washington for the justices."

The University of Kansas, a state school, paid for
Scalia's flight, meals and lodging, according to
Scalia's financial disclosure statement.

The next day, the dean dropped the justice off at the
airport in Lawrence, Kan., where he met the governor
and the former state Senate leader.

Bond, a 14-year state senator who retired at the end
of 2000 as president of the Kansas Senate, said he
spoke with McAllister before Scalia came to Kansas.
"He was bringing out Scalia and he said Scalia really
wanted to go pheasant hunting," Bond recalled.

"He said he [McAllister] couldn't go because he was
going to have a case before the court and it would be
inappropriate. He said he had no problem with bringing
him in and having him speak to students, but that he
could not go out and socialize with him."

Bond spoke to Graves. The former governor, in a
separate interview, said he was honored to have the
chance to go hunting with a Supreme Court justice.

Graves said he and Bond decided to take Scalia to the
Ringneck Ranch near Beloit, Kan., which was owned by
Keith Houghton, a friend of the governor.

Graves said they flew from Lawrence on the governor's
official plane, which he described as a King air prop,
and returned on the same plane after hunting. Scalia
reimbursed the state $121.87 for the round trip.

"The controlled shooting part of the trip was good,"
Graves said. "They plant birds, and that gives you a
better attempt to get some birds."

Added Bond of Scalia, "We stayed the night and had a
delightful time. He was just charming to be around."

Bond said that because the trip was two months after
the Sept. 11 terrorist attacks, Scalia had told them
in advance that he did not think it wise to fly from
Washington with his own firearm. So, Bond said, "I
loaned Scalia a gun. I have plenty."

Graves and Bond said the two court cases never came up
during the trip. "There was no conversation along
those lines," Graves said.

Added Bond, "The cases were never discussed or
mentioned. Zero."

However, both officials said the legal matters were
critically important to the state, or they would not
have expended the money and effort to take them to the
Supreme Court.

The two also said they did not see a conflict in
socializing with the justice while the legal matters
were pending.

"It's kind of a stretch to tie that together," Graves
said.

When the trip was winding down, Bond recalled, "Graves
and I told him we would like him to be our guest and
pay his way, and he said no."

Houghton, the ranch owner, said Scalia wrote a
personal check for "several hundred dollars" to cover
his hunting, meals and lodging at the camp. "Once he
realized that we were a commercial institution, he
made a point that he had to pay for this," Houghton
said.

To commemorate the trip, Houghton said, they took
several photographs of the justice including one
that now hangs in a large frame at the camp.

After Scalia returned to Lawrence, McAllister said,
the dean and others associated with the law school
took the justice to dinner.

Two weeks after hosting Scalia, the law school dean
was back in Washington to argue on behalf of Kansas in
a case called McKune vs. Lile. That case tested
whether Kansas could force sex offenders to confess
all their past sex crimes as part of prison treatment.


Robert Lile, an inmate, argued that the state policy
would force him to incriminate himself. A federal
district court and appeals court agreed, and Kansas
was asking the high court to overturn those rulings.

During the oral argument, Scalia questioned whether
the inmate had a constitutional basis for his
complaint. "Your client had been deprived of no
liberty to which he was entitled, not a single liberty
to which he was entitled," he told Lile's lawyer,
Matthew J. Wiltanger.

The Supreme Court sided with Kansas in both cases,
with Scalia voting on McAllister's side each time.

In January 2002, the high court said in a 7-2 ruling
in Kansas vs. Crane that state officials could hold
sex criminals beyond their prison terms if they prove
the convicts had a "serious difficulty" in controlling
their behavior.

Scalia dissented, but not because he opposed the
Kansas law. The court, he said, should have given the
state even greater freedom to hold sex offenders. The
ruling "snatches back from the state of Kansas a
victory so recently awarded," he wrote, referring to a
Supreme Court decision allowing the state to hold
certain inmates indefinitely.

In the second Kansas case, the court in a 5-4 ruling
said state prison authorities could compel inmates to
confess to past crimes as part of a treatment program,
and they could take away privileges from those who
refused.

The lawyers who lost the two Kansas cases said that
while they were curious about the law school visit and
the hunting trip, they never expected to win Scalia's
vote in the first place.

"I trust that Justice Scalia would have stepped aside
had his ability to rule been compromised by his
hunting trip in the state," Wiltanger said.

Back in Kansas, Bond and Graves said Scalia had earned
their respect as a marksman. At one point in the
field, the hunters were surprised by a quail, and
Scalia shot the bird in midflight.

"He came back with a bag full of birds," McAllister
said, "cleaned and packed in ice, ready to take back
on the plane to Washington."

*

Justice Scalia's Statement

The following statement was issued by Supreme Court
Justice Antonin Scalia in response to a Los Angeles
Times inquiry about his 2001 trip to Kansas:

I was not the guest of Stephen McAllister, but of the
University of Kansas Law School. The invitation, in
fact, had come not from Stephen McAllister but from
his predecessor as dean of the law school, Michael
Hoeflich. That invitation was issued in December of
1999 and accepted (by phone) some time before October
of 2000 long before the October and November, 2001,
cases you refer to were on our docket. My travel
expenses to Lawrence were reimbursed by the University
of Kansas, not by the state. I flew with the governor
and others on the governor's plane from Lawrence to
Beloit and back, and promptly reimbursed the state of
Kansas for the cost.

I do not think that spending time at a law school in
which the counsel in pending cases was the dean could
reasonably cause my impartiality to be questioned. Nor
could spending time with the governor of a state that
had matters before the court. Indeed, if the latter
were so, Supreme Court justices would be permanently
barred from social contact with all governors, since
at any given point in time virtually all states have
matters pending before us, either in accepted cases or
in petitions for certiorari [or requests for the court
to hear a case].

Copyright 2004 Los Angeles Times

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Posted by richard at February 27, 2004 12:54 PM