By Susan Crabtree - 09/30/09 10:15 AM EDT
In the wake of the scandal surrounding the firing of U.S. attorneys under the George W. Bush administration, members of Congress have become extremely sensitive about their colleagues’ contact with the courts and prosecutors.
Members of Congress are barred from contacting prosecutors about investigations or cases, and there are strict rules governing how they may communicate with a judge with opinions in ongoing legal matters.
Any communications between individual citizens and judges about pending cases are strictly limited unless all parties are provided copies of the communication at the same time. The goal is to ensure judicial fairness and avoid one party or another leaking “secret” information to a judge in order to sway an opinion.
Kucinich addressed the Sept. 15 letter to San Francisco Superior Court Judge Richard Kramer but sent it care of San Francisco City Attorney Dennis Herrera at his City Hall address.
Kucinich said he asked Herrera to hold onto the letter and not send it to the judge when it came under scrutiny.
“When questions were raised, I decided that the prudent course of action was to ask the city attorney to retain the letter and not communicate it to the judge,” Kucinich wrote in an e-mail to The Hill. “I have also requested that the Committee on Standards clarify the instructions in the Ethics Manual.”
Former Sen. Pete Domenici (R-N.M.) and then-Rep. Heather Wilson (R-N.M.) came under fire in 2006 after former U.S. Attorney David Iglesias said the two had contacted him before his dismissal. He argued they were trying to hasten the prosecution of an individual with ties to Wilson’s opponents for political purposes.
Attorneys specializing in congressional ethics said Kucinich did nothing wrong but that the episode shows exactly why the ethics rules governing lawmakers’ contact with courts need to be clarified.
Matt Dorsey, a spokesman for City Attorney Herrera, said his boss plans to file the letter for the court’s consideration and response and would make it available to all the parties in the case at the time.
“It’s written to the judge like any pleading would be … the congressman isn’t showing up to the judge’s house for tea and crumpets,” he said.
Tara Malloy, an associate counsel with the Campaign Legal Center, said the letter is a bit confusing because it is addressed to the judge and would appear on its face to be an improper ex parte communication.
If it was never sent to the judge, however, she said Kucinich did not do anything wrong, although it would have been clearer if he had simply filed an amicus brief with the court.
She said House ethics rules should be rewritten to provide clearer guidance to members of Congress, because communication in active court cases is such a sensitive matter.
“There should be more clarity in the House ethics manual about how these things should be addressed to avoid an appearance that a member is trying to use his influence in a court communication,” she said.
When contacted by The Hill, Judge Kramer said he didn’t believe he had received a copy of the letter, adding it was “odd” that a letter would be addressed to him but sent to Herrera.
“That’s odd,” he said. “I know the city attorney, but he doesn’t get my mail for me.”
In the letter, dated Sept. 15, Kucinich requested that the judge remove a protective order on documents in a San Francisco-based civil case, The People vs. National Arbitration Forum, et al.
The case involves the booming business of credit-card debt collection and allegations that the Forum, the once-dominant firm in the industry, favored creditors that are trying to collect from unsophisticated debtors. Herrera sued the Forum on behalf of area debtors.
As chairman of the Domestic Policy subcommittee of the Oversight and Government Reform panel, Kucinich has been investigating credit-card arbitration practices and held a hearing on the subject on July 22.
F. Paul Bland testified at the hearing against the use of mandatory arbitration clauses in credit card contracts. Bland is a staff attorney at Public Justice, a group that advocates for consumer and worker rights, and previously served as a co-chairman and member of the board of directors of the National Association of Consumer Advocates.
Republicans are irked that neither Kucinich nor Bland disclosed Bland’s of-counsel position with Chavez and Gertler, a successful law firm that regularly argues class-action cases on behalf of consumers.
Frederick Hill, a spokesman for Rep. Darrell Issa (R-Calif.), the ranking member on the House Oversight and Government Reform Committee, said
Republicans have long worried that Democrats were misusing the committee for the financial gain of trial lawyers.
“This letter, which advances the private interests of a trial lawyer who testified before the subcommittee and helped advance the lawsuit, detracts from and taints the serious work of the Oversight Committee,” Hill said.
In his letter to the judge, Kucinich said he was writing to support the city attorney’s request because the disclosure of that information serves the public interest. He also noted that there is no reason to justify protecting the information because the Forum is no longer in the business of consumer-debt-collection arbitration.
“It is my understanding that the plaintiff in this action has recently petitioned the Court to remove or modify the Protective Order that currently prevents many of the documents and much of the discovery from being disclosed to anyone other than the parties to the action,” Kucinich wrote.
House ethics rules specifically address the issue of members’ communications with courts.
The rules direct members who “have relevant information” to provide it to “a party’s counsel, who could then file it with the court and notify all parties.”
“Alternatively, the Member could seek to file an amicus curiae, or friend of the court, brief,” the rules state. “Yet another option, in an appropriate case, might be to seek to intervene as a formal party to the proceeding.”