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Another Scalia trip coincided with court cases

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 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 led the state's defense before the Supreme Court of a Kansas prison program for treating sex offenders.

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. The dean enlisted then-governor 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 the state in both cases. In a statement, Scalia wrote: "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 took place shortly after the Supreme Court had agreed to hear Cheney's appeal seeking to keep secret the workings of 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 Supreme 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 formerly 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 who also said he saw no problems with the hunting trip. He added: "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 cases in 2001, the state of Kansas has not had any matters argued before the Supreme Court.

In January 2002, the Supreme 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 have 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.

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 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," attorney Matthew J. Wiltanger said.

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