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When opposing lawyers for Virginia and Maryland rise to argue before the U.S. Supreme Court on Oct. 7 about water rights in the Potomac River, they will each cite documents more than 300 years old. But the document that really counts in the case was written by a man who is expected to be in the audience — not at the lectern: Ralph Lancaster Jr., a partner at the law firm Pierce Atwood of Portland, Maine. The Supreme Court three years ago appointed Lancaster to be special master in the case — gathering facts and analyzing law and serving, in effect, as the Court’s eyes and ears in the battle between the two states. Lancaster is one of a handful of lawyers tapped by the Supreme Court for the prestigious job of special master, a shadowy position that flows from the Court’s rarely invoked original jurisdiction over disputes between states and other narrow categories of cases — such as suits involving ambassadors — granted in the U.S. Constitution. And in recent years Lancaster’s firm, Pierce Atwood, the largest law firm in northern New England, has virtually cornered the market on this work. Of the six special master appointments since April 1992, one has gone to Lancaster and three to his partner Vincent McKusick, former chief justice of the Maine Supreme Judicial Court. The other two special master appointments made by the Court in that period went to academics. George Washington University Law School professor Gregory Maggs is weighing a dispute between Alaska and the federal government, and Paul Verkuil, former dean of Yeshiva University’s Benjamin N. Cardozo School of Law, presided over the high-profile fight between New Jersey and New York over ownership of Ellis Island. Since the Court is the first, and only, judicial body to hear original jurisdiction cases, the special masters function like district court judges, gathering a factual and legal record, and recommending an outcome for the high court to review. But masters are picked by the Court, are not confirmed by the Senate, and are not required to file financial disclosure forms. Their fees are paid not by federal tax dollars, but by the states arguing before them, as ordered by the Court itself. And though special masters are guided by federal rules of procedure, they are not bound by them, and each operates differently. All but one special master in the Court’s history have been white males. At issue in the dispute between Virginia and Maryland is not whether the Potomac River actually belongs to one state or the other. Maryland has been regarded as the owner of the river since a land grant from England’s King Charles I in 1632. The question is whether Virginia needed permission from Maryland to build a pipe from the Virginia side to draw drinking water from the Potomac. Even before special master Lancaster recommended last December that Virginia should prevail, the pipe was built. But the case continues, with lawyers defending or attacking Lancaster’s recommendations. The Court will make the final decision, sometime after next week’s arguments. The Lancaster and McKusick appointments have not been questioned, and the operation of special masters in general has gone largely without criticism — until last year, when the Minnesota Law Review published an article on special masters titled “Lurking in the Shadows of Judicial Process.” Author Anne-Marie Carstens, an associate at Wilmer, Cutler & Pickering, writes, “The lack of procedures available to define the processes of the special masters, the special masters’ autonomy, and the closed-chamber appointment mechanism for selecting special masters threaten hallmarks of the American judicial system: open, adversarial processes, judicial accountability, and uniformity of judgments.” Both Lancaster and McKusick say their initial appointments came unexpectedly. “We have not attempted to persuade the Court to appoint us,” says Lancaster, who had prior experience in international boundary disputes before his first appointment as a Supreme Court special master in a New Jersey-Nevada dispute in 1987. Lancaster also was independent counsel from 1998 to 2000 in the investigation of former Secretary of Labor Alexis Herman. And McKusick, who clerked for Justice Felix Frankfurter in 1951, had written an article about the history of special masters before being tapped by the Court. His first appointment came in a dispute between Connecticut and New Hampshire in 1992. According to one Court insider, McKusick got his other two in part because of his reputation for hard work, integrity, and “knocking heads,” enabling him to resolve cases quickly. Original jurisdiction cases often languish for decades — one dispute between Arizona and California that is still on the Court’s docket began in 1953 — but McKusick got Kansas and Nebraska to settle a thorny dispute over water rights in the Republican River basin in less than four years. “It’s a wonderful experience. There’s always a lot of feeling on both sides. Large things are at stake,” says McKusick. PRESTIGIOUS WORK There is no “Supreme Court, Northern Division” sign hanging at the firm’s front door, but Pierce Atwood managing partner Bruce Coggeshall is proud of the prestigious appointments his partners have gotten from the high court. “We’re not bashful about it.” He also jokes, “The Supreme Court issues an order; it’s a nice way to get paid. I wish all our bills were that easy to collect.” The special master appointments have been lucrative as well as prestigious for Pierce Atwood. According to Supreme Court records, states involved in the five cases handled by Lancaster and McKusick as special masters have paid the firm a total of $1,271,278. In Virginia v. Maryland, the parties have paid Pierce Atwood a total of $351,418 so far. Lancaster did not order a trial in the case, and, according to one source, did not visit the site of the pipe construction on the Potomac. He held several hearings at the federal courthouse in Washington, D.C., and at one point he sent the parties into closed-door mediation before Leonie Brinkema, a U.S. district judge in Alexandria, Va., whose involvement in the case had been approved by both sides. The mediation proved unsuccessful. Lancaster wins high marks from lawyers associated with the case. “He was very courteous and handled the case as a federal district judge would,” says Andrew Baida, who will argue against Lancaster’s recommendations next week. Baida, the former Maryland solicitor general who handled the case at earlier stages, is of counsel at Rosenberg Proutt Funk and Greenberg in Baltimore. For the Potomac River dispute, Lancaster billed his services at $450 an hour, and he brought McKusick in as a consultant for limited periods at $350 an hour. An associate at the firm worked as Lancaster’s law clerk and “case management assistant” at $155 an hour, according to bills filed with the Court, and other staff and office supply costs are also billed to the parties. By custom, the sides are permitted to comment on the special master’s bills before they are paid, but neither Virginia nor Maryland have objected. “You wouldn’t expect a state to object to a fee submitted by the guy who is going to recommend an outcome in its case, would you?” observes one expert on special masters. Parties may not object to special master fees, but on rare occasions justices themselves have done so. Both the late Chief Justice Warren Burger and the late Justice Harry Blackmun objected to fees charged in the late 1980s by the late Charles Meyers, former dean of Stanford Law School, then a partner in the Denver office of Gibson, Dunn & Crutcher. Meyers, serving as special master in a water rights dispute between Texas and New Mexico, had billed the parties at a rate of $290 an hour. Burger in 1986 objected, asserting that the “public service aspect” of serving as special master should enter into the fee calculation. After another bill came in two years later, Blackmun angrily wrote, “It is difficult for me to accept the fact that in Denver, Colorado, this partner’s time is now worth $290 an hour.” He added, “It seems to me that ‘establishment’ law firms are doing themselves and the public a disservice by asserting fees of this magnitude so persistently over dissents from the Court.” One currently serving special master has taken the “public service” factor into account. Arthur Littleworth of Best Best & Krieger in Riverside, Calif., was appointed in 1987 to preside over a dispute between Kansas and Colorado involving the Arkansas River Compact. He charged $250 an hour then — and he still does. That hourly rate, he says, is “significantly less” than what he charges other clients today. Littleworth held a trial that began in 1990 and continued in spurts until January 2003, spanning 270 days over 13 years. Littleworth says his colleagues kid him about the low fee he charges, but he has stuck with it. “It’s a commitment, it’s public service, and it’s an honor,” Littleworth says. Littleworth, who is currently preparing a case report to the Supreme Court, says his appointment came out of the blue with a phone call from Justice Byron White. “He said I’d been recommended to him, and he asked if I’d do it. You don’t go to Congress, you don’t apply, you don’t do anything. You get called.” In fact, some lawyers do apply for the job. The files of the late Justice Thurgood Marshall — publicly available at the Library of Congress — include several letters from lawyers seeking appointment as special master. But it is not clear how the justices develop the “short list” from which the Court picks special masters. WHERE ARE THE REAL JUDGES? Concerns over high fees charged by special masters used to be nonexistent. Until about 20 years ago, special masters were usually picked from the ranks of already-compensated senior federal judges — including former Supreme Court Justices Charles Evans Hughes, Stanley Reed, and Tom Clark. But that practice tapered off as senior judges became urgently needed to help lower courts deal with their own case backlogs. Another problem with using senior judges was that they sometimes did not live long enough to see their long-running cases to completion, necessitating appointment of new masters and causing years of delay. But in her law review article, Wilmer, Cutler lawyer Carstens urges a return to the practice of appointing senior judges as a way of increasing accountability. Senior judges, unlike private lawyers, have at least been confirmed by the Senate earlier in their careers and must abide by ethical canons. Another solution, which she concedes is “overwhelmingly impractical,” would be to give the trial function to the Supreme Court itself. Special masters were appointed in the first place because the Court views itself as an appellate arbiter without the expertise — or time — for the extensive fact-finding involved in original jurisdiction cases. Often, the reports of special masters read like surveyors’ journals, with detailed recitations of metes and bounds, and descriptions of the course of rivers that have shifted. But they are hard-fought cases that opposing states feel strongly about, says John Draper of Montgomery & Andrews in Santa Fe, N.M. Draper is one of few private attorneys who have argued before numerous special masters. “They are the type of issue where, if the states were countries, they would go to war over them,” says Draper. In water-starved states, the stakes are high in human and economic terms, he adds. “There are few issues more contentious than those.” The Court is not obliged to take up every original jurisdiction case brought before it, however, and Carstens’ law review article notes that the Court has rejected more than half through history. California once brought an original case claiming that West Virginia had breached a contract covering football games between San Jose State University and the University of West Virginia. The Court declined to hear it, though Justice John Paul Stevens dissented. Probably the best-known special master case in recent years, most would agree, was more about bragging rights than life-or-death issues: The dispute between New Jersey and New York over Ellis Island. The case generated passionate arguments on both sides, recalls Verkuil, the special master in the case. As Verkuil remembers it, the first inkling he had of his appointment was at a reception at the Supreme Court in 1994: “[Chief Justice William Rehnquist] walked over to me and said, ‘It looks like we may have a case for you.’ ” Verkuil responded positively, and soon found himself tramping around Ellis Island with lawyers for both states, so he could get a feel for the issues. Francis Lorson, then the deputy clerk of the Court who worked with special masters, accompanied him. When Verkuil asked the states where they wanted the trial held, he was surprised to learn that both sides preferred neutral territory. Verkuil suggested the Supreme Court itself, and for the first time in its history, the Court building was the site of a trial. It lasted 23 days and was open to the public. Verkuil recalls one poignant witness who said he was born on Ellis Island and and regarded himself as a New Yorker. The testimony was of dubious value, but Verkuil allowed it, mindful of the strong emotions in the dispute. “Both sides treated me like a judge and called me ‘your honor,’ ” says Verkuil, “ which wasn’t technically necessary.” After the trial, Verkuil sent a report to the Supreme Court urging a sort of shared sovereignty, with each state taking jurisdiction over part of the island. It was largely a victory for New Jersey. Both sides objected, filing “exceptions” that the Court, as is its usual practice in original jurisdiction cases, considered at oral argument. The Court accepted most of Verkuil’s recommendations. The parties paid Verkuil $713,924 in fees. In retrospect, Verkuil says he would have benefited from a procedural manual or set of rules that could have governed his work as special master. Verkuil, law professor Maggs, and Littleworth say they got helpful guidance from Pierce Atwood’s McKusick, who at age 80 is regarded as the most knowledgeable of all the special masters. In her law review article, Carstens asserts that the lack of procedural rules is one of the biggest problems with special masters. “Greater oversight and institutionalized procedures are necessary to ensure the integrity of proceedings,” she argues. But rules or no, Verkuil says serving as special master was an unforgettable experience. “It was a thrill — one of the best things I’ve ever done,” says Verkuil. He felt honored to have such an impact over Ellis Island, which is where his father, a Dutch immigrant, first encountered America. Verkuil was also pleased to wrap up the case in roughly three years — unusually fast for a special master case. “These are not usually sprints,” says Verkuil. “They are usually very long-distance runs.”

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