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Supreme Court decision on judges and campaign contributions recalls race between Karmeier and Maag

This article first appeared in the St. Louis Beacon, June 9, 2009 - This week's U.S. Supreme Court decision requiring judges to disqualify themselves from cases involving big campaign donors has a special resonance in Illinois, where big contributions to state supreme court candidates recently raised questions of bias.

Cindi Canary, executive direcor of the Illinois Campaign for Political Reform, pointed to Monday's U.S. Supreme Court decision involving a West Virginia judicial election as recognition that "outsized contributions and special interest money can create the appearance of bias in the judicial system."

Canary pointed to the $9.3 million Illinois Supreme Court campaign in 2004 when Justice Lloyd Karmeier defeated Gordon Maag in southern Illinois's 5th Judicial District.

In the wake of that election, Karmeier refused to recuse himself and cast decisive votes in two high-profile cases affecting big donors. In one, he was an important vote in the majority decision tossing out the $10.1 billion verdict won by smokers who claimed to have been misled by Philip Morris' suggestions that "light" cigarettes were healthier than regular ones. In the second case, Karmeier cast the deciding vote throwing out a $1 billion judgment against State Farm for using old parts in repairs of cars damaged in crashes.

A spokesman for the Illinois Supreme Court said that Karmeier would not be commenting publicly on the the Supreme Court's decision in Caperton vs. A.T. Massey Coal Co.

In that decision, the Supreme Court recognized a new constitutional right, ruling that the due process clause of the Constitution requires the recusal of elected judges where large campaign contributions raise a "serious, objective risk of actual bias."

In the West Virginia case, coal mine owner Hugh Caperton and other small coal companies won a $50 million verdict from Massey Energy, claiming they the big coal company had run them out of business. The case was on appeal to the West Virginia Supreme Court of Appeals when the 2004 judicial elections occurred.

Don Blankenship, chairman of Massey, set out to defeat an incumbent justice and replace him with Brent Benjamin, seen as more sympathetic to his interests. Blankenship gave $2.5 million to a committee -- "And for the Sake of the Kids" -- supporting Benjamin for the high court. He also gave more than $500,000 for independent expenditures for direct mailings and TV ads, and the $1,000 maximum contribution to Benjamin's campaign committee. The $3 million that Blankenship spent exceeded all of the money spent by all other Benjamin supporters.

After his election, Benjamin refused to recuse himself from a pending appeal involving the coal company and cast the deciding vote to overturn a $50 million judgment against Massey.

Justice Anthony M. Kennedy joined the more liberal wing of the court in the 5-4 decision. He wrote that it is "axiomatic" that due process requires a "fair trial in a fair tribunal." Previously, the court had ruled that a judge may not have an economic interest in a case, nor may a judge try a case where he or she was involved initiating the criminal charges.

Kennedy stressed that not every political contribution would be considered a cause for recusal and added that the West Virginia facts were extraordinary. But he concluded that "there is a serious risk of actual bias -- based on objective and reasonable perceptions -- when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."

Kennedy said that courts in the future will have to inquire into "the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."

Roger Goldman, a law professor at Saint Louis University said Kennedy "typically joins the liberal side in cases involving the judiciary," often voting for fair legal process. Goldman wrote in an email that it could turn out that the West Virginia case is unique and won't be applied again, much like the controversial Bush v. Gore case settling the 2000 presidential election.

There are differences between the West Virginia case and the two Illinois cases involving Karmeier. In the two Karmeier cases, the campaign donations were smaller, did not come from one individual and were not as large a portion of the cost of election. Still, donations in question were in the millions, critics maintained that Karmeier could not be impartial and the judgments overturned were much larger than the West Virginia judgments.

State Farm, its lawyers and those who filed friend of the court briefs on its behalf donated more than $350,000 to Karmeier's election efforts. In addition, groups affiliated with State Farm gave more than $1 million. Philip Morris' lawyers contributed $16,800 to Karmeier's campaign and the Illinois Civil Justice League gave $1.19 million to his election. The league is a pro-business group that had filed a friend of the court brief on behalf of Philip Morris. The Illinois Chamber of Commerce, which also filed a brief on the tobacco company's behalf, gave $269,338.

Lawyers for the smokers did not ask Karmeier to recuse himself, but public-interest groups did. He responded that he was unbiased because he did not keep track of those donating to groups supporting his election. Those suing State Farm did appeal on the basis of Karmeier's refusal to recuse himself. The Brennan Center in New York and other good-government groups filed friend of the court briefs asking the U.S. Supreme Court to hear the case in 2006, but it declined.

One way to look at the Supreme Court's refusal to hear the appeal in the State Farm case is that it did not consider the contributions to Karmeier to raise the same kind of problem it later found in the West Virginia donations. But Supreme Court refusals to grant review do not mean that the court agrees with the lower court decision. So the court's refusal to review the State Farm case may not mean it saw the Karmeier donations in a different light.

John Jackson, a visiting professor at the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, wrote in an email that he "thought of the Karmeier case immediately when I heard of the Caperton ruling. If it doesn't apply here, it will not be of much use anywhere. After all, $1 million is still real money.

"Also, the perception of bias issue was raised during the campaign and insistently after the campaign and should have been enough for Karmeier to recuse himself without having the Caperton ruling to tell him the same thing. In my opinion, it was clear as could be."

Canary also thinks that the Caperton decision is relevant to the events of the 2004 election. But she added, "With Karmeier, the issue isn't whether he was truly impartial or not, it was that under the circumstances no one could believe he would be impartial -- the appearance factor. Conceivably the same problem would have existed if Maag had won. Would anyone have believed he could have impartially judged the case when State Farm, et al., had so heavily bankrolled his opponent?

"Hopefully this decision will goad the Court into establishing some objective measurable recusal standards, as well as convincing the legislature that judicial public financing offers a positive alternative to privately financed judicial elections," she wrote in an email.

What is unclear is whether those who sued State Farm or Philip Morris in Illinois can do anything now to revive their cases.

Chief Justice John Roberts wrote in dissent that the court's decision left far more questions than it answered and included 40 sample questions. Question 34 was whether losing parties in state-court cases already closed can now go into federal courts to renew their claims.

This past December, Stephen Tillery, the lawyer who sued Philip Morris, sought to reopen the $10 billion case. He pointed out that in a decision earlier this year the U.S. Supreme Court had decided that smokers of "light" cigarettes could claim in state courts that tobacco companies had deceived them. That Supreme Court decision is at odds with the earlier Illinois Supreme Court decision ruling out such suits.

Tillery did not immediately comment on the possible impact of the Caperton decision. Tillery did not seek to recuse Karmeier. Tillery had given $100,000 in support of Maag's election, raising the question of whether Maag would have had to recuse himself from the Philip Morris case had he been elected instead of Karmeier.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. 

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.