Will High Court Revisit Issue of Judicial Election Money and Recusal?

A new request invites the U.S. Supreme Court to accept an appeal and revisit the issue of judicial campaign contributions and a perception of bias from the bench, Alison Frankel writes for Reuters. She provides context about the issue from a Justice at Stake-coauthored report.

The St. Louis law firm of lawyer Stephen Tillery has asked the U.S. Supreme Court to hear an appeal and find that Illinois Supreme Court Justice Lloyd Karmeier improperly declined to recuse himself from a multi-billion dollar anti-tobacco case, as Gavel Grab recently mentioned. The Reuters article addresses this filing and more recent arguments by Philip Morris, in its opposition brief, and by more than a dozen former state appellate judges, in an amicus brief supporting the Tillery firm.

Last year, the Illinois Supreme Court ruled as it had before in favor of tobacco company Philip Morris, sparing it a $10.1 billion judgment in the anti-tobacco litigation, and Justice Karmeier voted in the 4-2 majority. Karmeier had declined a request by plaintiffs to recuse. When Karmeier ran for retention (yes-or-no) election in 2014, a $3 million spending battle “was largely linked to interests with a connection” to the ongoing anti-tobacco litigation, Justice at Stake and two partner organizations reported in Bankrolling the Bench: The New Politics of Judicial Elections 2013-14.

Frankel begins her article by citing not the legalities of the appeal request, but the bigger picture: According to findings in The New Politics report, “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,” and “Overwhelmingly, the judicial candidate who raises the most money wins the election.”

Concern about an appearance of bias, when justices have received money from a party to a case, was voiced by the former judges in their brief, Frankel writes.  “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,” the judges’ lawyers wrote. “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 says Karmeier did not directly or indirectly accept campaign money from the company.