This Robe For Hire

Last week, the Hon. Paul J. De Muniz, recently retired chief justice of the Oregon Supreme Court, strode into a state capitol hearing room to offer his legal opinion on a bill being debated by lawmakers.

De Muniz is a renowned constitutional expert. He served a decade on the Oregon Court of Appeals and 12 more years on the top court, more than six as chief justice.

So when De Muniz weighed in on the bill, he did so with two decades of cumulative legal authority.

After identifying himself by his new job title in retirement—"distinguished jurist in residence at the Willamette University School of Law"—De Muniz proceeded to tell lawmakers the bill before them was unconstitutional. "If you are looking for a statute that reduces litigation," De Muniz testified, "€œthis isn'€™t it."

What De Muniz did not make clear to legislators, however, was why he was there: He's now a paid lobbyist for the insurance companies that want to kill SB 814.

De Muniz downplays his role. "The insurers just asked to give an opinion," he says. "They just registered me [as a lobbyist] to be careful."

De Muniz also chairs Gov. John Kitzhaber's Commission on Public Safety, which is working on sentencing reform, De Muniz has frequently met with lawmakers in that role. 

But Rep. Jeff Barker (D-Aloha), who as chairman of the House Judiciary Committee has worked with De Muniz for a decade, says he was "shocked" when the ex-chief justice came to lobby him on an insurance bill.

"It just seems odd to me that he's walking out the door as chief justice and walking into my office as a lobbyist," Barker says. "I respect and like him, but it does smack of him selling the title of 'Chief Justice.'"

De Muniz's work as a lobbyist has raised ethical questions both about the way the former chief justice is trading on his reputation, and how power works in Salem.

De Muniz's lobbying is an unusual situation that state ethics laws and the code of judicial conduct do not address.

Roger Martin, a lawmaker and lobbyist for nearly 50 years, says he cannot recall another Supreme Court justice lobbying. "I don't think anybody's ever done that before," Martin says. 

A 2007 law prohibits legislators and state agency directors from lobbying for one year after leaving public office. That law was silent, however, on the matter of judges. The Oregon Code of Judicial Conduct prohibits work that "creates a reasonable doubt about the judge's impartiality." The 65-year-old De Muniz—who retired Jan. 7—still serves as a part-time judge, filling in on the bench at least 35 days a year.

On April 9, De Muniz first registered as a lobbyist, signing on with Perseverance Strategies, a lobbying firm, to advocate for the national popular vote, an alternative to the Electoral College. He wrote an April 18 editorial on the topic for The Oregonian, which identified him as a retired Supreme Court chief justice—but not as a paid lobbyist.

In May, De Muniz surfaced in the state capitol lobbying on behalf of the Property Casualty Insurers Association of America against the environmental cleanup bill. He registered as an insurance industry lobbyist with the Oregon Government Ethics Commission on May 6, three days before testifying against the clean-up bill.

De Muniz he earlier circulated his legal opinion about the insurance bill on the letterhead of Willamette's College of Law. Willamette officials say they were unaware of De Muniz's use of university letterhead, and that his lobbying activities are not tied to the school.

Willamette University's employee handbook says the use of university assets, including letterhead, for personal business "should be avoided."

That's a common standard. "Law faculty should not, in general, use law firm or university letterhead for private practice activities," says a 2005 article in the University of Kansas Law Review. "Such use could be construed to suggest some connection of the law school or the university to the representation, which would generally not be true and which would, therefore, be misleading."

De Muniz says using Willamette letterhead was a mistake. "I just thought as a law professor I was expressing my own opinion," he says. "It was never my intent to communicate something about Willamette University."

When De Muniz testified in front of the House Consumer Protection and Government Efficiency Committee about the cleanup bill, he did not clearly identify himself as a paid advocate.

"The Property Casualty Insurers Association of America contacted me and requested that I assess the constitutionality of certain provisions of Senate Bill 814," he said in his written testimony.

During his oral testimony, De Muniz made several references to his role on the Supreme Court, using the word "we" in reference to the court 10 times.

De Muniz tells WW he never intended to imply any connection between his opinion and Willamette. Nor, he says, did he think he might be trading on the influence he gained as a Supreme Court justice.

"The insurers asked me to look at a constitutional question," he says. "I don't consider myself a lobbyist."

After De Muniz finished his testimony, however, committee chairman Rep. Paul Holvey (D-Eugene) took the unusual step of identifying De Muniz's role.

"It bears repeating that although you served very honorably on the Oregon Supreme Court, you are not here representing the Supreme Court," Holvey told De Muniz. "And, I think, you are not representing Willamette University either. You are working for the property and casualty insurers."

Holvey tells WW his intention was to clarify for other lawmakers in what capacity De Muniz was acting.

"I wanted to make sure," Holvey says,"there wasn't a perception he was there representing the Supreme Court."

WWeek 2015