Philip Morris to SCOTUS: Don’t revisit corporate money in judicial elections

March 28, 2016

(Reuters) – It now costs, on average, at least $1 million to run a successful campaign for a seat on the state-court bench in Illinois, Wisconsin, North Carolina, Michigan and Ohio, according to an October 2015 report: “Bankrolling the Bench,” by Justice at Stake, the Brennan Center and the National Institute on Money in State Politics. In the two most expensive states for judicial campaigns, Michigan and Illinois, prospective judges spent more than $3 million, on average, in the most recent elections.

Overwhelmingly, the judicial candidate who raises the most money wins the election. In 2013 and 2014, according to the Bankrolling study, candidates with bigger campaign war chests won more than 90 percent of the time. If you want to be a judge in one of the 39 states that fills its bench through elections, you’re going to have to do more to raise campaign contributions than hold a few chicken dinners and shake a lot of hands.

This new reality is well known to the U.S. Supreme Court. In last May’s decision in Williams-Yulee v. The Florida Bar, Chief Justice John Roberts fretted about the impact of judicial campaign costs on the public’s faith in judges’ independence – a concern that, for the Chief Justice anyway, seems to have escalated since the court’s 2009 decision in Caperton v. Massey Coal. In that case, you may recall, the Supreme Court held that the due process rights of a plaintiff who won $50 million fraud verdict against the coal company were violated when a West Virginia judge refused to recuse himself from Massey’s appeal, even though Massey’s then-chairman had contributed about $3 million to the judge’s campaign. Chief Justice Roberts wrote the dissent in Caperton, emphasizing potential problems with the majority’s recusal standard. In Williams-Yulee, by contrast, he put the appearance of judicial impartiality ahead even of a candidate’s First Amendment rights.

If the Supreme Court is interested in revisiting the issue of campaign contributions and the appearance of judicial bias, it has a vehicle. In January, Illinois state court class action plaintiffs who won a $10 billion judgment against Philip Morris in 2003 for allegedly misrepresenting its “light” cigarettes filed a petition for certiorari, claiming that their due process rights were violated because Illinois Supreme Court Justice Lloyd Karmeier refused to step aside when his court reviewed a state appellate decision to reinstate the judgment against Philip Morris. The case obviously has a long and tortured history – including an unsuccessful cert petition after the Illinois Supreme Court first overturned the judgment in 2005 – but for the purposes of this column, all that matters is the plaintiffs’ assertion that Justice Karmeier had no business participating in the Illinois Supreme Court’s decision last fall to bounce the judgment a second time.

According to Supreme Court counsel from Kellogg, Huber, Hansen, Todd, Evans & Figel, Justice Karmeier should have recused himself because Philip Morris indirectly contributed to his 2004 and 2014 campaigns through pro-business groups and because the state judge told a reporter on the night of the 2014 election that the potential billion-dollar fee award for plaintiffs lawyers was “distorting the system.”

“Any reasonable observer would interpret Justice Karmeier’s comments as indicating that he was biased against petitioners and their attorneys, and that he had already prejudged a pending case in favor of Philip Morris,” the cert petition said. “This court’s precedents make clear that recusal is required either where a judge is actually biased or, under the objective circumstances, the probability of bias is too high to be constitutionally tolerable. Justice Karmeier’s statements criticizing the fee award at stake, disparaging petitioners’ attorneys and indicating an intent to vote against petitioners easily surpass that threshold.”

More than a dozen former state appellate judges, including several onetime state chief justices, filed an amicus brief backing the cert petition. The former judges said they’re worried about the appearance of bias when state justices are perceived to have taken money from one side in a big case. “In exceptional cases, as this court has recognized, the Constitution’s guarantee of due process may require recusal notwithstanding a judge’s subjective determination that he is unbiased,” wrote the judges’ counsel at Hogan Lovells. “This case tests that threshold. Despite the appearance – at a minimum – of impropriety, Justice Karmeier went on to cast the decisive vote to deny petitioners their verdict. He did so not once, but twice. This Court should grant certiorari to establish that the Constitution requires recusal when the judge cannot be impartial due to significant contributions from a party in a pending case.”

Philip Morris’ opposition brief, filed Friday by Winston & Strawn, Mayer Brown and Arnold & Porter, argues that Justice Karmeier did not actually accept campaign contributions from the company, even indirectly, and never made pejorative public comments about plaintiffs lawyers. “Both assertions are sheer fiction,” the brief said. Moreover, according to Philip Morris, any problems of public perception were from the $2 million in attack ads aired by plaintiffs lawyers opposing the justice’s re-election in 2014. And the justice’s remark to a reporter about the system’s “distortion,” according to Philip Morris, was simply Karmeier’s reaction to the money his opponents spent on negative ads.

“Litigants surely cannot fabricate a basis for recusal through attack ads,” the brief said. “That would only accelerate an already worrisome uptick in attack ads challenging the election or retention of judges who rendered ‘unpopular decisions.'”

The Supreme Court has already heard arguments in one recusal case this term, Williams v. Pennsylvania. In that case, a defendant sentenced to capital punishment is challenging the Pennsylvania Chief Justice’s decision not to step aside from reviewing the death sentence, even though the judge was tangentially involved with the case as a district attorney – and trumpeted the outcome as a judicial candidate.

The Williams case does not involve corporate campaign contributions, but the Philip Morris plaintiffs suggested the Supreme Court might want to wait until after its ruling in Williams to consider granting cert in their case. Philip Morris, which filed its opposition brief a week ahead of its deadline, said there is no reason to wait for Williams because Justice Karmeier, unlike the former prosecutor-turned-judge in the Pennsylvania case, had no “rooting interest” in the outcome of the suit against the tobacco company.

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