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The Tenth Circuit Court of Appeals is the federal appeals court for Colorado, Utah, Wyoming, Oklahoma, Kansas and New Mexico. In late September, President Bush nominated Oklahoma U.S. District Court Judge James H. Payne to serve on the Tenth Circuit. His nomination remains pending.
Salon is raising questions about Judge Payne’s ethics.
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[Judge Payne] issued more than 100 orders in at least 18 cases that involved corporations in which he owned stock, a review of court and financial records shows.
Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on cases involving companies in which they own stock — no matter how small their holdings — in order to uphold the integrity of the judicial system.
Salon asked Judge Payne to respond to the allegations before publishing its article:
Payne refused to answer repeated requests by Salon for comment regarding conflicts of interest in the cases over which he presided. When reached by phone for comment on Dec. 20, Payne said, “I do not have time … I can’t do it,” before abruptly hanging up. He did not respond to a subsequent call, or to a follow-up letter delivered to his office on Dec. 22, detailing the problematic cases and asking for an explanation.
It’s too soon to conclude that Judge Payne did or did not violate the oath of his office. We don’t have enough facts. But I hope he regrets his remarks to Salon. The media is everywhere today and judges find themselves in the thick of it more often than ever before. “I don’t have enough time” just doesn’t cut it. It’s even more of a cop-out than “No comment.”
What could he have said? How about, “You caught me at a really busy time. Can I get back to you after court or tomorrow morning?” Then he could have called his legal advisor and discussed how to respond. If he didn’t feel comfortable speaking directly with the reporter, his advisor could have returned the call.
Without Judge Payne’s comments, we’re left with Salon’s reporting of comments by law professors , lawyers who have appeared before him for many years and their clients. Their opinions are very different. The law professors opt for a strict interpretation of judicial ethics requirements and opine that the Judge was in violation. The lawyers who have litigated cases in his court say it’s absurd to think he would rule in favor of a company just because he owned its stock. The lawyers’ clients doubt the Judge’s impartiality.
When push comes to shove, lawyers are retained to be adocates for their clients, not psychologists. As a lawyer who practices in federal court, personally I would feel the same as the quoted Oklahoma lawyers in vouching for the impartiality of all of the federal judges in Colorado, even those who have never once ruled in my clients’ favor. But, that’s not the test. And in a lawsuit where the Judge owns stock in the company I am suing, my opinion of a particular judge’s honesty or fair-mindedness undoubtedly will be questioned if my client loses the case.
The burden here is on Judge Payne to explain. There are indications in the article that he disclosed several of the potential conflicts to the lawyers in open court and none objected. I’ll even go the extra mile for him and say he likely was caught off guard by the reporter’s telephone call and responded instinctively by claiming he was too busy and hanging up. I’ll bet he regretted it the moment he hung up the phone. But he should have realized his mistake by the next day and either personally offered up his response or had his representative do so.
Now it’s going to become a media story, and in light of recent similar allegations against Judge Alito, it may snowball into something bigger that ends up threatening his nomination to the Tenth Circuit.