The problem with judicial elections, Illinois Supreme Court edition

November 3, 2014

Nov 3 (Reuters) – As we close out the election cycle, the nonprofit Brennan Center is reporting a surge in last-minute spending by special interest groups hoping to influence elections for state Supreme Court justices. Last week alone, according to the center, outside groups spent nearly $1 million to air television ads in judicial races in Illinois, Michigan, Montana, North Carolina and Ohio. Overall, contributions from groups not tied directly to judicial candidates have dramatically increased since the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, according to a new study by researchers at Emory University School of Law with support from the American Constitutional Society. In the last federal election cycle, outside groups contributed $24.1 million to judicial elections, more than 40 percent of the total spent on campaigns for judgeships.

I understand the rationale for electing judges: Those who interpret the law should have to answer to voters who are subject to their decisions. But that principle is dragged into the dirt when everything voters know about judicial candidates comes from scary attack ads funded by special interest groups. The process ends up demeaning not only individual judges but the entire judicial system. It’s just about impossible to disagree that public faith in the judiciary is undermined by ads like those highlighted in a piece Friday by campaign law expert Richard Hasen of the UC-Irvine School of Law and Slate Supreme Court writer Dahlia Lithwick.

The opacity of some of the special interest groups that contribute to judicial campaigns only adds to suspicion and cynicism about the legal system. Remember, for instance, the Supreme Court’s 2009 judicial recusal case Caperton v. Massey? The justices said that a West Virginia Supreme Court judge should have stepped aside in an oil company’s appeal because he had received $3 million in campaign contributions from Massey’s CEO. About $2.5 million was funneled through a political action committee.

A more recent recusal fight – involving an Illinois state Supreme Court justice caught in one of the hardest-fought judicial elections of the year – shows how difficult it is to wash away the mud stains from special interest spending in judicial campaigns, whether the taint is justified or not. The justice, Lloyd Karmeier, is campaigning for voters to approve his retention for a second 10-year term. He has received the endorsement of the Illinois State Bar Association and The Chicago Tribune, but his retention is opposed by plaintiffs’ lawyers who say he is beholden to Philip Morris for bankrolling his 2004 campaign.

The plaintiffs’ lawyers have also made those accusations in court, to no avail. Karmeier refused on Sept. 24 to recuse himself when the Illinois State Supreme Court rehears an appeal of a $10.1 billion verdict against Philip Morris for allegedly misleading consumers about the risks of smoking “light” cigarettes. Karmeier said plaintiffs’ lawyers at Korein Tillery, Power Rogers & Smith and Richardson Patrick Westbrook & Brickman hadn’t come up with any facts to back their claim that Philip Morris money helped get him elected in 2004 by funneling money to his campaign through political action committees. “In reality, the notion that (Philip Morris) was responsible for financing my run for office ten years ago is just that, a notion,” Karmeier wrote. “It is based entirely on conjecture, innuendo and speculation which, once started, took on a life of its own.”

The plaintiffs’ lawyers had contended that Karmeier should step aside to assure the public that he was not swayed by Philip Morris’s alleged indirect contributions to his 2004 campaign, when he unseated a Democratic justice in the most expensive judicial campaign in Illinois history. According to plaintiffs’ lawyers, Philip Morris proxies such as the Illinois Chamber PAC, the Chicagoland Chamber of Commerce PAC, and JUSTPAC (a political action committee for a state tort reform group) contributed nearly $1.5 million to Karmeier’s campaign, knowing that the light cigarettes case was on the Illinois Supreme Court’s docket. The U.S. Chamber, in which Philip Morris executives held leadership roles, supposedly steered almost $2 million more to Karmeier’s cause through the Illinois Republican Party. According to the plaintiffs, it was no accident that when Karmeier won the election and took his seat on the Supreme Court in time to hear Philip Morris’s appeal, he voted to vacate the $10.1 billion jury verdict. (The case was remanded to the lower courts, which reinstated the verdict, leading to the latest round at the state Supreme Court.)

Philip Morris – which is represented by Mayer Brown, Arnold & Porter and Winston & Strawn – said that the plaintiffs’ allegations contained no evidence of a tie between the company and the Karmeier campaign. Philip Morris contributed nothing to the Chicagoland Chamber or to JUSTPAC in 2003 and 2004, and only $20,000 (through its parent company) to the Illinois Chamber. Illinois has robust campaign reporting requirements, and, according to Philip Morris, it made no reportable contribution to the 2004 judicial election for Illinois Supreme Court.

That would seem like a definitive declaration, but the plaintiffs’ lawyers came back with a filing that argued the truth of Philip Morris’ engagement in the Karmeier election lies in financial records that Philip Morris refused to turn over. If those records really supported the company’s avowed avoidance of the campaign, the plaintiffs said, Philip Morris would have produced them. So by inference, they argued, Philip Morris should be considered to be hiding something. “Given (the) indisputable state of affairs at the time of the election, Philip Morris’s claim … is not merely disingenuous, it is absurd on its face,” the plaintiffs said in their filing. “The circumstantial evidence that Philip Morris played a key role in electing Justice Karmeier is not only plausible, it is compelling.”

Justice Karmeier said the plaintiffs’ argument – guilt by inference and association – is a threat to the entire idea of electing judges. Both the Michigan and Nevada Supreme Courts have refused to require judges routinely to recuse themselves from hearing cases involving lawyers or parties who contributed to their campaigns, he said. And though the Supreme Court said in the Caperton case that judges must step aside when there is a serious risk of bias, he said, the court also has a duty not to recuse when the risk is unfounded. “The claim that a judge may not hear a case because a party may have some association with a public interest group or political party that did support or may have supported the judge’s candidacy has no basis in the law, would be unworkable and is contrary to the very notion of an elected judiciary,” Karmeier said. “When judges are elected, as the Illinois Constitution requires, it is inevitable (and entirely appropriate) that interest groups will support judges whose judicial philosophies they believe are most closely aligned with their own views.”

Karmeier is right – which is exactly the problem with judicial campaigns in general and funding from special interest groups in particular.

In elections, perception is all that matters. The justice, who previously refused to step aside in the Illinois Supreme Court’s consideration of a $1 billion verdict against State Farm, is still being accused of doing the bidding of corporate defendants to whom he is beholden for campaign cash. Through a political action committee called Campaign for 2016, plaintiffs’ lawyers put out a television ad on Oct. 18 attacking the judge for taking money from Philip Morris and State Farm allies: “Karmeier: slammed for letting corporations buy justice,” the ad said. In all, according to the Brennan Center, the Campaign for 2016 has spent nearly $700,000 to eject Justice Karmeier. Meanwhile, the Republican State Leadership Committee has spent nearly $400,000 to keep him in, including an Oct. 23 television ad lauding the justice’s integrity.

That’s great for the ad agencies that produce judicial campaign spots and for the television stations that air them – but not for the public’s faith in the courts. Chief Justice John Roberts, who dissented from the majority opinion in Caperton, warned that the court’s holding would lead to a wave of recusal motions. The wave hasn’t really materialized, at least in civil litigation; most of the 350 or so opinions citing Caperton, according to Westlaw, involve criminal defendants’ attempts to remove judges. Only a bare handful involve recusal motions based on campaign contributions by one side or the other in civil cases.

I’d like to think that’s because lawyers and their clients have too much respect for the system to attempt to buy favor through donations in judicial elections. But the cynic in me says that both sides are playing the same game and just don’t want it to be exposed.

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It is unfortunate, but Democrats look at the courts as Justice Sotamayor said as a “policy making” institution contrary to the Founders’ concept of an “independent branch.”
“You reap what you sow.”

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