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

Alison Frankel for Reuters:

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.”…

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.

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