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Archive for Tuesday, March 2, 2004

KU dean’s role in trip sparks debate

March 2, 2004

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It started with U.S. Supreme Court Justice Antonin Scalia asking about shooting Kansas pheasants and Kansas University Law School Dean Stephen McAllister agreeing to organize a hunt.

Now, it's a national controversy.

Scalia's Nov. 16, 2001, hunting trip has raised eyebrows because McAllister later argued, and won, a case in front of the high court. Scalia knew of McAllister's pending appearance but saw nothing wrong with the trip.

The hunting trip and the conflict-of-interest issues it raised were the subject of a major story last week in the Los Angeles Times.

Earlier, the newspaper broke the story about Scalia being Vice President Dick Cheney's guest on a duck-hunting trip to southern Louisiana shortly after the high court had agreed to hear a case involving Cheney's efforts to keep secret a national energy task force's deliberations.

A portion of the story: "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."

Other national newspapers also are interested in the story.

"The Wall Street Journal called me over the weekend," McAllister said Monday. "I half-expected the story to be in today's paper, but it wasn't. It may be in Tuesday's."

Scalia had come to Kansas for a day of lectures, discussions and receptions at KU Law School.





Scalia's statement

Responding to the Times' questions about the Kansas hunting trip, Scalia issued a formal statement, noting:

  • He paid for his share of the trip.
  • His visit to Lawrence had been arranged before McAllister was dean and before the court had agreed to take McAllister's case.

McAllister said the Times article was accurate. But he said shorter versions of the story, which appeared in other newspapers across the country, left out several key points:

  • McAllister did not accompany Scalia on the hunting trip. Instead, he referred Scalia to Dick Bond, former president of the Kansas Senate and a KU Law School alumni. Bond was already planning a trip with then-Gov. Bill Graves to Ringneck Ranch, a private hunting reserve near Beloit.

The three flew from Lawrence aboard the governor's plane, for which Scalia reimbursed the state $121.87 round-trip.

  • McAllister did, in fact, appear before the Supreme Court in a case, Kansas v. Crane, that was argued by then-Kansas Atty. Gen. Carla Stovall.

"I was there, but the case was argued by Carla Stovall," McAllister said. "I put in an appearance, but that was it."

The case involved a challenge to Kansas laws allowing the state to detain sex offenders after they completed their sentences. The court -- including Scalia -- sided with Stovall, 7-2.

  • Two weeks after Scalia's visit, McAllister returned to Washington to argue McKune v. Lile, a case that tested whether prison-based, sex-offender treatment programs could force participants to confess their past sex crimes. The court sided with McAllister, 5-4. Scalia again voted in the majority.
  • McAllister said he never discussed McKune v. Lile with Scalia outside the courtroom.

"I acted appropriately. I maintained a professional distance," McAllister said, noting he made sure he was never alone with Scalia.

"At the same time, here I was the dean of a law school that was hosting a Supreme Court justice," McAllister said. "In that capacity, I was also a host."

No offense taken

Before coming to KU, McAllister clerked for Supreme Court justices Byron White and Clarence Thomas.

Preceded by Thomas and Stephen Breyer, Scalia was the third Supreme Court justice to visit KU in recent years.

"Justice (Ruth Bader) Ginsberg is coming in the spring of '05," McAllister said.

His organization of the hunt is a nonissue for the attorney who argued against him before the Supreme Court and lost.

"I am not enraged, alarmed or upset by this," said Matt Wiltanger, who argued against McAllister in McKune v. Lile.

"And you can make the argument that I should be upset because without Scalia, the vote would have been 4-4, which would have caused the court to go with the lower-court opinion, which was the position I had taken," said Wiltanger, an attorney with the Shook Hardy Bacon firm in Overland Park.

"But I trust that had Justice Scalia or Steve (McAllister) felt compromised on the issue of constitutionality of sex-offender program, they -- either of them -- would have removed themselves from the case."

Wiltanger said if he objected to McAllister's hosting Scalia, he would have to object to McAllister's having clerked for Thomas and White.

"No one is going to suggest that justices excuse themselves from cases involving their former clerks -- that would be impractical," he said, noting clerks often move on to prestigious firms that end up arguing high-profile cases before the court.

'Nonstory'

Bond said neither he nor Graves mentioned the McKune v. Lile case to Scalia.

"This is a nonstory," Bond said. "Though I suppose we could make our Supreme Court justices live in caves."

Bond told the Times he loaned Scalia a shotgun for the hunt, which was successful for the justice.

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

Not all Kansas legal experts are so quick to call the arranged hunt harmless.

"The bottom line is if you're going to be hobnobbing with the partisans that have any connection to a case, that's bad," said Shawnee County Judge Terry Bullock, who teaches a course on legal ethics at Washburn Law School.

"On the other hand, if the connection isn't there, then it all comes down to Caesar's wife," Bullock said. "By that I mean Caesar's wife always had to avoid impropriety or the appearance of it."

Bullock said he had not read the Los Angeles Times story and was unaware of its content.

Scalia has removed himself from one high-profile case before the high court this term. He is not taking part in the case that will decide whether recitation in public schools of the Pledge of Allegiance represents an unconstitutional government endorsement of religion because of the phrase "under God."

Scalia removed himself after giving a speech in which he questioned both the appeals court's ruling in the case and whether courts should remove religious symbols and phrases from public life.

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