Schafer Law Firm
RustBuilding, Suite 1050
950 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

April 10, 2002

Chief Deputy Clerk Frank Lorson
United States Supreme Court
One First Street N.E.
Washington, D.C. 20543

            Re:   Apparent Fraud Upon the Court Concerning Amicus Brief in
                    Republican Party of Minnesota v. Kelly (Docket No. 01-521)

Dear Mr. Lorson:

            This is to call the Court's attention to what appears to me (a completely disinterested observer of this case) to have been fraud upon the Court by persons who authored and funded an amicus brief in the above-titled case.

            Because of my interest in the issue in that case, I collected whatever Internet-posted materials I could before and after its oral argument on March 26, 2002. I obtained a posted PDF copy of the Amici Curiae Brief filed January 17, 2002 by "State Supreme Court Justices," and was surprised to see that one of the two individual justices who filed it was from my own state--Justice Richard Sanders of the Washington State Supreme Court. I also obtained a PDF copy of the Brief for Petitioners Republican Party of Minnesota by e-mail from the office of its Counsel of Record, James Bopp, Jr. And I was surprised to see on its cover the name, as Of Counsel, of Professor Ronald D. Rotunda, who participates on a national legal ethics Internet discussion group (Legalethics) along with me and about 160 others, roughly half of whom are law professors who teach ethics.

            With that background, I viewed a televised interview of Justice Richard Sanders last week, aired by public affairs network TVW (the Washington state equivalent of C-SPAN). Due to an announcement that he was to be the guest on Inside Olympia, I had e-mailed the host, Denny Heck (President of TVW), and suggested that he ask Justice Sanders about his amicus brief in the pending U.S. Supreme Court case. Mr. Heck did so, and Justice Sanders' reply, after recounting his judicial disciplinary case (Discipline of Sanders, 955 P.2d 369 (1998)), was (and I quote precisely):

"So I saw that the U.S. Supreme Court had accepted a similar case out of Minnesota. A law professor from, [pause] I believe, Chicago called me up and solicited my name to go on this brief. I said, "Sounds fine to me." And he wrote the brief and submitted it."

            I believe that law professor was Ronald D. Rotunda, Of Counsel for the Petitioner. The pronounced pause before Justice Sanders said "I believe, Chicago" suggested that he was not exactly sure of the city of the law professor who phoned him. The audio file of that Inside Olympia interview show is posted on the Internet website of TVW, and can be listened to using the free audio program called Real Player (from http://www.tvw.org, select Audio & Video | Archives, then Inside Olympia for April 3, 2002). The direct URL for the audio file is http://198.239.32.162/ramgen/200204/2002040054.ra and Justice Sanders' comment about the amicus brief is at the 40-minute point. The phone number of TVW is 360-586-5555, and I believe they would provide you a video casette tape of the specific program, if requested.

            Enclosed are copies of the covers of the two briefs mentioned above, and pages 1 and 2 of the amicus brief (including footnote 1, that appears to be a false statement). I also enclose copies of messages that I and others posted on the above-mentioned Internet discussion listserv about this matter. Though Professor Rotunda claimed that, "I have no idea" in reply to my question if he knew who the law professor was who solicited Justice Sanders, I find that denial not credible under the circumstances--since neither he, nor Justices Sanders or Taylor, nor their counsel of record, Erik S. Jaffe (who clerked in 1996-97 for Justice Clarence Thomas), is willing to identify any other law professor.

            I also enclose copies of e-mails that I sent to officials of the judicial conduct bodies of Washington and Michigan states. I do not know whether either such body will follow-up on this matter, but my experience informs me that any such follow-up likely will take a year or more. I am also providing those officials copies of this letter and its enclosures.

            Do not hesitate to contact me if you have any questions of me.

Very truly yours,
 

Douglas A. Schafer

Enclosures
cc:     Mr. David Akana, Ex. Dir. Wash. Comm'n on Jud. Conduct
         Mr. Paul J. Fischer, Ex. Dir. Michigan Jud. Tenure Comm'n