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In his financial disclosure form for the year 2005, Justice Stephen Breyer reported that he owned up to $50,000 of common stock in the Duke Energy Corp., which supplies power to more than 2 million people in North and South Carolina. Duke Energy is also the respondent in a major environmental case set for argument Nov. 1, Environmental Defense v. Duke Energy Corp. As federal law requires justices and judges to recuse in cases in which they hold a financial interest, “however small,” how is it that Breyer has not yet recused in the case? When justices recuse, they ordinarily do so at every step of the Court’s handling of the case�starting with the decision to grant review, which, in this case, occurred May 15. There was no indication then or since that Breyer has recused. It turns out that Breyer has an explanation for staying in the case. Asked about the seeming conflict, Breyer told Legal Times through Court spokeswoman Kathy Arberg that the stock belonged to his wife Joanna and was sold earlier this year, before the case went to conference. Breyer did not specify a date for the sale, but under his scenario it would have taken place before the May 11 conference, at which the Court apparently voted to grant certiorari, or possibly earlier. The petition and Duke Energy’s reply were circulated to the justices March 22. As a result of the sale, the case apparently did not trigger any red flags in Breyer’s chambers. Environmental Defense filed its petition for certiorari Dec. 28, 2005, when, according to his 2005 form, Breyer or his wife still owned Duke Energy stock. Judicial-ethics experts say his obligation to recuse was not triggered until the conference at which the Court took action on the case�by which time, Breyer says, he no longer owned the stock. But Breyer’s nonconflict highlights the challenges faced by judges in policing potential conflicts of interest, especially so soon after the Judicial Conference last month imposed new requirements on lower federal judges to redouble their efforts to detect and prevent conflicts of interest through conflict-checking software and other means. Breyer’s stock ownership in Duke Energy was on the public record and online. Yet a spot-check of lawyers involved in the case suggests they were not aware of Breyer’s interest, which would have been an automatic cause for recusal�if not for the new information about the stock sale revealed by Breyer. “First I heard about it,” says Sean Donahue, lawyer for Environmental Defense. “It’s news to me,” says Carter Phillips of Sidley Austin, who represents Duke Energy. And the Court’s file on the case contains no letter from any lawyer in the case suggesting that Breyer recuse or asking whether recusal was warranted. Stephen Shapiro, partner at Mayer, Brown, Rowe & Maw and co-author of Supreme Court Practice, says it would be unusual for a lawyer to make such an inquiry. “There is concern about doing this because, if the motion is denied, the judge may take offense at the suggestion that he or she is not being vigilant in reviewing such matters,” Shapiro says. Under the Court’s Rule 29.6, Shapiro adds, the Court “expects the parties to be diligent,” when they file briefs on behalf of a company, to also reveal the names of any parent corporations or other entities that own 10 percent or more of the company’s stock. But beyond that, Shapiro indicated, it is up to the justice to take that information and establish procedures that will flag potential conflicts. In essence, justices are on their own when it comes to gathering the information they need to make recusal decisions. So now that Breyer is staying in the case, who benefits? At issue is the Environmental Protection Agency’s “new source review” program, which imposes licensing requirements on companies adding new pollution sources to existing plants and factories. Duke Energy and other businesses are asking the Court not to impose the requirements when modernization and modification projects do not increase a facility’s hourly rate of emissions. Environmental groups counter that the improvements should be covered by the regulations because they allow the plants to operate more hours, thereby increasing overall emissions when measured on an annual basis. Donahue declines to predict which way Breyer would vote and what his presence in the case means, adding that he hopes his arguments appeal to all the justices. Phillips says, “I’m always happy to have Justice Breyer sitting. He makes the arguments more fun.” More seriously, Phillips adds, “Any recusal would be a plus for us, because a 4-4 vote would be a win.” When a case is decided by an evenly divided Supreme Court, the lower court decision�which Duke Energy won in this instance� stands. SEEING RED By law, the Supreme Court opens its fall term on the first Monday in October. But by tradition, the Court season begins the day before, with the annual Red Mass celebrated at the Roman Catholic Cathedral of St. Matthew in Washington, D.C. At this year’s Oct. 1 mass, four of the five Roman Catholic justices�along with Attorney General Alberto Gonzales, several other Cabinet members, and dozens of other area judges and public officials�were in the pews. But another usual fixture at the event was missing. Because of a recent court ruling, an evangelical Christian minister who often demonstrates outside the mass stayed away out of fear of being arrested. Inside, new Archbishop Donald Wuerl told worshippers that religion cannot be separated from public life. “We cannot expect national prosperity without morality, and morality cannot be sustained without religious principles,” said Wuerl, who came to Washington in June after 18 years as the bishop of Pittsburgh. Chief Justice John Roberts Jr., who, with his wife, Jane, was active for many years in the Catholic organization that sponsors the mass, was in the front row, as were Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Justice Samuel Alito Jr., the other Catholic on the Court, did not attend, nor did the non-Catholic judges, some of whom have come in the past. The Rev. Pat Mahoney, a persistent demonstrator outside the cathedral in past years, stayed away. A Presbyterian minister and head of the Christian Defense Coalition, Mahoney blamed a Sept. 27 court decision that sided with the government in his long-standing battle against restrictions on demonstrations at the Red Mass. “The First Amendment and free speech are clearly under attack,” says Mahoney. “I want to challenge this ruling and felt that showing up again this year would not help my appeal.” Citing the need for security during an event that draws such a large number of high-ranking public officials, the U.S. Marshals Service and local police have long cordoned off the public area in front of the cathedral in Northwest Washington, restricting access to those attending the mass and credentialed new media representatives only. Demonstrators were allowed only in a separate area that, although still visible from the cathedral, is some distance away, and behind where media cameras are permitted. In 2003, Mahoney and other demonstrators were arrested after repeatedly trying to walk into the restricted area with a sign, though they had been told they could attend the mass itself. The next year, Mahoney returned and claimed he was harassed by police as he tried to demonstrate in the permitted area. He complained of similar trouble in 2005, when President George W. Bush attended. Mahoney sued the marshals service, but U.S. District Judge Royce Lamberth granted the government’s motion to dismiss the complaint. Lamberth determined that the Red Mass restrictions were content-neutral and gave Mahoney “adequate alternative channels” to convey his message to those attending. In such a situation, Lamberth said, the government only needed to show it had a “significant” interest�not a compelling one�to justify the restrictions. “Common sense dictates that when prominent judges, government officials, foreign dignitaries, Supreme Court justices, and occasionally the President attend an event in a confined area in downtown Washington, D.C. . . . the risk that there will be violence or other disruption is very real,” wrote Lamberth. Mahoney’s lawyer, James Henderson Sr., says, “As I read it, the decision does mean that, when �protected persons’ will be coming to or leaving from the Cathedral, all demonstrations could be banned.” Henderson, senior counsel at the American Center for Law and Justice, adds that the ruling could be used to justify banning demonstrations in a broad range of other public places. WHISTLE STOP Justice Ruth Bader Ginsburg was in the minority in the First Amendment decision Garcetti v. Ceballos in May. The 5-4 majority took a narrow view of the free-speech rights of government whistle-blowers. On Oct. 18, Ginsburg may get the chance to reverse the ruling�at least in a fictional setting. She will preside over a mock trial based on Henrik Ibsen’s powerful play “An Enemy of the People.” The Lawyers Committee for the Shakespeare Theatre Company is sponsoring the event, which will take place at the U.S. Court of Appeals for the Federal Circuit. The trial will transplant the play from Norway to Washington, where the names are the same, but the bureaucracy is different. Dr. Thomas Stockmann is fired for publicizing his concerns about contamination of the water in a park in a blighted area of the District. The park is operated by the U.S. Department of Housing and Urban Development, which is headed by Stockmann’s brother Peter. The whistle-blower sues his brother for violating his freedom of speech and wins at the district court and appeals court level. Joining Ginsburg to decide the case will be D.C. Circuit Judge Douglas Ginsburg; Judges Paul Michel, Alan Lourie, and Pauline Newman of the Federal Circuit; and Judge Frank Schwelb of the D.C. Court of Appeals. Representing the whistle-blower in oral arguments will be Barbara McDowell of the Legal Aid Society of the District of Columbia. McDowell is a former assistant to the solicitor general who argued 18 cases before the Supreme Court. She says, “I don’t get to appear before Justice Ginsburg any more. I do argue before Judge Schwelb, though. It will be exciting.” The Garcetti decision, which sharply limited First Amendment protection for work-related speech for government employees, will be hard to overcome in her arguments, McDowell acknowledges, “but I hope Justice Ginsburg will persuade her court to reconsider. Besides, we have truth and justice on our side.” McDowell’s only disappointment about the assignment: “At first I thought we’d get to wear cool costumes,” she says, “but because the setting is now D.C., we won’t.” Representing the cabinet secretary who fired his brother will be Gregory Craig of Williams & Connolly, who, not so long ago, represented former President Bill Clinton in his impeachment trial. “If my client does not win, chaos will descend on this city,” says Craig, clearly getting into his role. “You can’t have bureaucrats running around saying whatever they want and pretend to run a government.”
Tony Mauro can be contacted at [email protected].

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