By Treating Recusal Motions as a Game, Lawyers are Eroding Public Confidence in our Courts

Ill. S CtThe meaning of “chutzpah” is often illustrated by pointing to the man who kills his parents and then throws himself on the mercy of the court because he is an orphan. The recent actions of a group of plaintiffs’ lawyers involved in a multi-billion dollar case before the Illinois Supreme Court exhibit a similar kind of chutzpah. They have labored for more than a decade to have Justice Lloyd Karmeier removed from the case, most recently by bankrolling (to the tune of more than $2 million) a “no” campaign for Karmeier’s November 2014 retention election. That effort narrowly failed: 61% of the south Illinois electorate voted to retain Karmeier for another 10-year term.

So last month the attorneys filed a motion to have Karmeier removed from the case. Their reason? Karmeier is likely biased against them because of their persistent efforts to get rid of him, and the integrity of the courts requires the removal of judges whose impartiality might reasonably be questioned. The motion lacks merit and should be denied. Motions of this sort are doing far more to undermine public confidence in the integrity of the judicial system than could a judge’s decision to hear a case despite self-interested allegations of partiality. As Justice Antonin Scalia has explained, such motions feed the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, and that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.

Justice Karmeier was first elected to the Illinois Supreme Court in 2004, after a bitterly contested campaign in which his opponent spent more than $4.3 million to brand Karmeier as a tool of the business community. Pending before the court at that time were two class-action lawsuits in which trial courts had awarded huge verdicts against large, out-of-state businesses: Price v. Philip Morris ($10.1 billion in damages, including $1.8 billion in attorneys’ fees) and Avery v. State Farm Mut. Auto. Ins. Co. ($1.1 billion in damages). In both cases, Justice Karmeier cast the deciding vote in 2005 to overturn the judgments.

Plaintiffs’ attorneys have been working ever since to have those two judgments reinstated. Their cause gained some momentum in 2008 when the U.S. Supreme Court issued a decision that cast some doubt on the legal reasoning the Illinois Supreme Court had employed to dismiss Price v. Philip Morris. The attorneys still face an uphill battle, given that courts are always reluctant to re-open a case once a final judgment has been issued and all direct appeals have been exhausted. They achieved some initial success in an appeals court, and the Illinois Supreme Court last year voted to decide whether the case should, indeed, be re-opened. The attorneys recognized that, Karmeier—given his vote against them in 2005 and his 2014 vote to review the appeals court decision—was unlikely to support their efforts to re-open the case. Accordingly, once the Illinois Supreme Court announced that it would hear the case, they began a concerted effort to prevent Karmeier’s participation.

First, the Price attorneys filed a motion in May 2014 to disqualify Karmeier from participating in re-opening proceedings. They alleged that most of the funding for Karmeier’s 2004 campaign came from Altria, the parent corporation of Philip Morris. They produced no evidence that Altria provided any funding, but suggested that perhaps Altria had funneled cash through trade and political groups that did make contributions to the campaign. Citing the absence of such evidence, the court denied the motion to disqualify. Justice Karmeier released a separate, 16-page opinion denying any knowledge of Altria contributions and explaining his decision not to recuse himself. He stated that because he voted against the plaintiffs in 2005 (he is one of only two justices in the majority who remain on the court, along with the two 2005 dissenters), the plaintiffs might have concluded that “he would continue to vote against them now.”

The attorneys’ next gambit was to organize the last-minute “no” campaign in Karmeier’s retention election. Indeed, the entire funding for their “Campaign for 2016” came from seven individuals/law firms, all but one of whom are directly involved in the Price/Avery litigation. Three partners at the law firms representing the Price plaintiffs (i.e., the firms that will receive a $1.8 billion fee if the judgment is reinstated) contributed $1.5 of the $2.1 million raised to prevent Karmeier’s retention. The Campaign for 2016 financed an avalanche of negative broadcast ads, robo-calls, and mailers that falsely claimed that Karmeier’s votes in the Price and Avery cases had been “bought” by supposed contributions from Altria and State Farm.

Despite the vicious and false attacks, the Campaign for 2016 failed, and voters retained Karmeier for another 10-year term. The strong endorsement of the Illinois State Bar Association—which stated that “Justice Karmeier is considered very respectful of people, hardworking, well-prepared, thoughtful, and scholarly in his written opinions”—no doubt played an important role in the outcome of the election.

Dissatisfied with the verdict of the electorate, the plaintiffs’ attorneys late last month filed a renewed motion to have Karmeier disqualified from the Price case—this time, based on his response to their “no” campaign. The motion relied largely on a November 2014 newspaper article that read, “The judge said Tuesday night [i.e., election night, before the outcome of the election was known] that lawyers could stand to gain financially if he were ousted from the bench. . . ‘It’s the size of these [attorneys’] fees that is distorting the system,’ Karmeier said. ‘The money is so substantial.’” The motion argues that the quotations indicate that Karmeier is biased against the plaintiffs’ attorneys and has already decided to rule against re-opening the Price case.

That argument is frivolous. Although the plaintiffs’ attorneys may have a reasonable basis for concluding that he may end up voting not to re-open the case, he has not yet studied the case, let alone made up his mind on how he would vote. Karmeier’s alleged statement that “lawyers could stand to gain financially if he were ousted from the bench” reflects nothing more than his understanding that, all else being equal, plaintiffs’ lawyers would prefer to have their cases heard by judges with a pro-plaintiff track record. Moreover, his statement that the potential for multi-billion dollar legal fees is “distorting” the electoral system is a criticism of a system that permits fees of that magnitude, not an indication of bias against attorneys who would seek such fees. Once-respected legal ethicist Geoffrey Hazard’s signature of a declaration stating that the press statement “can only be understood to express [Karmeier’s] intent to rule against [the plaintiffs] in this appeal” simply demonstrates that well-heeled attorneys will have little difficulty locating a law professor willing to support their side of a recusal motion.

The motion also argues that Karmeier should be disqualified because Altria supposedly bankrolled his retention campaign. That argument is belied by Karmeier’s campaign records, which show that none of the $286,000 raised by his campaign came from Altria or individuals associated with the company. Plaintiffs’ lawyers base their claim on documents showing that the Republican State Leadership Committee B IE Committee (“the Committee”) independently spent $950,000 to purchase television ads supporting Karmeier’s retention. They note that Altria contributed $500,000 to the Republican State Leadership Committee (“RSLC”) in early October 2014, and that the RSLC transferred $950,000 to the Committee on October 23, 2014. They assert that the “clear path” of funds demonstrates that the $500,000 Altria contribution was made for the purpose of supporting Karmeier’s retention. There is only one problem with that assertion: there is no support for it.

The RSLC contributes to political campaigns across the country, and Altria denies that it directed that its contribution to the RSLC be directed to the Karmeier campaign. Indeed, it insists that it asked that its funds not be used in judicial campaigns. Furthermore, the timing of Altria’s RSLC contribution supports its denial. When Altria made its $500,000 contribution in early October, the Karmeier race was on nobody’s radar screen, because no organized opposition to his retention had yet materialized. Only in mid-October did the Price and Avery attorneys put together their Campaign for 2016 and begin running $2 million in ambush attack ads against Karmeier. In other words, in early October the RSLC had no reason to earmark funds for the Karmeier campaign. The obvious implication: it was the plaintiffs’ attorneys’ own mid-October decision to pour money into the campaign, not a supposed early October directive from Altria, that prompted counter-funding from the RSLC.

More importantly, there is no evidence that Karmeier had any knowledge of the independent decision of the Committee and/or the RSLC to purchase ads supporting his retention or of the RSLC’s receipt of a portion of its contributions from Altria. He knows about it now, of course—because the plaintiffs’ lawyers have included that information in their disqualification motion and have trumpeted it to the press. But case law does not permit a litigant to create the grounds for recusal by raising unsubstantiated bias claims and then alleging that those claims might lead some to question a judge’s impartiality.

The plaintiffs’ attorneys rely heavily on Caperton v. A.T. Massey Coal Co., a 2009 Supreme Court decision that invoked the Due Process Clause to require disqualification of a judge who was first elected to the Supreme Court of Appeals of West Virginia while a coal company’s appeal of a large jury verdict was pending before the court and who received a significant majority of his financial support from the coal company. Caperton is wholly inapposite. It is uncontested that Karmeier’s campaign received no direct support from Altria. While the plaintiffs’ attorneys allege that Altria made independent expenditures in support of the retention campaign, they have provided no evidence in support of that allegation, and Altria denies it. Most importantly, there is no evidence that Karmeier knew (or even knows now) whether Altria bankrolled any independent expenditures, so there is no reason for an impartial observer to believe that Karmeier is biased in favor of Philip Morris.

Enough is enough. The plaintiffs’ lawyers have been trying for more than a decade to prevent Karmeier from participating in the Price case. They have failed to establish their bias claims—either in a court of law or in the court of public opinion. They have been provided one last opportunity to persuade the Illinois Supreme Court to re-open a case that they lost a full decade ago. They should focus their efforts on the legal issues implicated by their motion to re-open, not on gaming the system by seeking to disqualify a potentially adverse justice. They claim to be interested in maintaining the integrity of our courts. But they fail to appreciate that their gamesmanship itself poses a significant threat to public confidence in the integrity of the judicial system.

Also published by Forbes.com on WLF’s contributor page

3 thoughts on “By Treating Recusal Motions as a Game, Lawyers are Eroding Public Confidence in our Courts

  1. You’re factually wrong about the West Virginia Caperton case: the coal company president dis not contribute more than the limit to the candidate’s campaign. The several million dollars about which SCOTUS ruled was a wholly independent expenditure over which the candidate had no control whatsoever.

  2. Pingback: Update: Illinois Supreme Court Rejects Plaintiffs’ Lawyer’s Request to Remove Justice from $11 Billion Case | The WLF Legal Pulse

  3. Pingback: April 22 roundup - Overlawyered

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