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Scalia Took Trip Set Up by Lawyer in Two Cases
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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