- The Washington Times - Friday, January 4, 2002

Mary Frances Berry has enlisted a prestigious New York law firm in an effort to keep a disputed commissioner on the U.S. Commission on Civil Rights. To join the legal action, Miss Berry has violated a commission statute that forbids the use of free assistance.
In a filing in U.S. District Court, Miss Berry and Commissioner Cruz Reynoso, and "on behalf of [the] United States Commission on Civil Rights," join defendant Victoria Wilson in an effort to maintain Miss Wilson's spot on the commission.
The commissioners have engaged the exclusive law firm of Paul, Weiss, Rifkind, Wharton & Garrison, which has handled a number of death penalty cases. An attorney from the law firm yesterday said the firm was handling the case pro bono without charge.
"As far as I'm concerned, this is a pro bono case," said Theodore Wells, an attorney for Miss Berry.
A commission statute prohibits using free services: "The Commission shall not accept or utilize services of voluntary or uncompensated personnel. This limitation shall apply with respect to services of members of the commission as it does with respect to services by other persons."
That prohibition was the basis of an argument made by Miss Berry last summer, when she refused to use information supplied by two panel members who dissented from a report on the 2000 Florida election. Miss Berry and a majority of the commission supported a report that concluded that the election included discrimination and was unfair.
The dissenters Abigail Thernstrom and Russell Redenbaugh included in their dissent statistical conclusions drawn by John Lott, a scholar from Yale, who did not charge for his work. The data he supplied was disallowed.
The action is the latest development in the legal tussle that has dominated the commission since last month, when two persons came to the monthly meeting claiming the same commission seat.
The Justice Department filed a federal lawsuit on Dec. 7, asking a judge to seat Bush appointee Peter Kirsanow.
At issue is the length of Miss Wilson's term.
She was appointed in 2000 to fulfill the remainder of an unexpired term that ended in November but maintains that she has a six-year appointment. The Justice Department and the White House believe Mr. Kirsanow is the rightful commissioner.
Mr. Kirsanow's appointment would jeopardize Miss Berry's power by reducing those with a Democratic leaning on the panel from a 5-3 majority to a 4-4 deadlock.
The partisan battle spills over to the selection of the New York law firm.
The firm yesterday was celebrating its defense of New Jersey Sen. Robert G. Torricelli, a Democrat who had accusations of accepting illicit contributions dropped.
The new motion by Miss Berry called an intervention allows the defendants more legal expertise as well as allowing parties who feel they may be affected by the outcome of a case to have some input.
"This is typically the kind of case a firm takes pro bono," said Robert Kelner, a Washington, D.C., lawyer who has advised Mr. Kirsanow. "But it raises a whole new question: Is it funded by taxpayers or is it pro bono? And if it is pro bono, isn't that a violation of statute?"
Also yesterday, a commissioner rebuked staff director Les Jin for his role in assisting Miss Berry in her quest to retain Miss Wilson.
A letter from commissioner Jennifer Braceras questioned the authority of Mr. Jin in retaining any counsel in the name of the commission, which did not vote on the issue.
She also rebuked Mr. Jin, a Clinton appointee, for a memo he issued last month stating that additional legal action was needed to "vindicate" the "commission's position" on the Justice Department's lawsuit.
"In taking these actions, you have acted far outside the scope of your authority as staff director," she wrote.
"Even assuming for the sake of argument, however, that the commission is permitted by law to retain outside counsel, at no time was the full commission ever asked to vote on whether to do so in this instance."
Mr. Jin yesterday refused to answer any questions about the securing of counsel for Miss Berry and Mr. Reynoso.
An attorney for Miss Wilson said he was unaware of the statute. "It's nothing we've looked at," said Michael Solender.


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