The St. Louis Post-Dispatch published an editorial today that comments on the U.S. Chamber's "slick" P.R. campaign to pressure state legislatures to tilt the legal playing field even more radically toward the interests of corporations.

Echo chamber

03/30/2006

Flash! Lawyers for big corporations like working in states where the laws favor big corporations.

This startling fact is the essence of a slick PR campaign being conducted by America's biggest corporate lobbying organization, the U.S. Chamber of Commerce in Washington, D.C.

The campaign's aim is to pressure state legislatures to tilt the legal playing field even more radically toward the interests of corporations.

Each year, the Chamber sponsors a survey of corporation general counsels and senior attorneys, asking them about the legal systems in the 50 states. In this year's survey, Missouri ranked 35th, up from 40th last year, while Illinois ranked 45th, up from 46th.

"Missouri is a great example of a state that has taken substantive steps to fix its legal system," Chamber president Tom Donohue proclaimed in releasing the 2006 rankings. Despite Illinois' slight improvement, he stated, it "has a long way to go to finish the job."

Whether they constitute a fix is a matter of opinion, but there's no denying the changes to Missouri's legal system. Lawmakers have made it harder for injured parties to file certain kinds of civil suits, made it more difficult to file suits where juries might be more sympathetic toward individuals and set limits on how much companies could be fined for certain kinds of damages.

The Chamber of Commerce is using its latest survey in sly full-page newspaper ads — including one in this newspaper — to cry out: "Please don't feed the trial lawyers." The ads urge Missouri-like changes to legal systems in such states as Illinois.

It's hardly surprising that the corporate lawyers surveyed — those who work for companies with at least $100 million in annual revenue — prefer legal systems that favor them.

But corporate professionals in the field of economic development have different priorities. When they answer questions about why companies locate where they do, liability issues rarely come up. The industry publication Area Development has been conducting such surveys for 20 years. The factors most often cited by development professionals are the availability of skilled labor, highway access, high-speed Internet and government incentives, as well as housing and access to quality health care.

Encouraging new businesses and the creation of new jobs is something we all support. To succeed, we'd be well advised to ignore the echo Chamber of giant corporations and focus our efforts on what really matters.

Slate posted a interesting article on Averyand the Maag/Karmeier election and rhetorically asks "Was Justice Karmeier's decision legitimate, well-reasoned, unbiased?" That is a good question. Who's going to find the answer?

The Campaign Trial
The true cost of expensive court seats.
By James Sample
Posted Monday, March 6, 2006, at 4:16 PM ET

In 1920s Chicago, it was widely known that Al Capone and his associates had bribed so many public officials that "justice" was available only to the highest bidder. Even when justice was genuinely served, a perception of pervasive corruption undermined public confidence that the rule of law prevailed. Today, a similar confidence problem is brewing in courts around the country. And in Illinois, the appearance of South Side Chicago "justice" did not go away. It just moved to Springfield.

Today, the U.S. Supreme Court declined to hear the case of Avery v. State Farm Automobile Ins. Co., an appeal out of the Illinois Supreme Court. Avery is the fallout from the most expensive state judicial campaign in U.S. history: the 2004 race for a seat on the Illinois Supreme Court. In that race, Illinois Appellate Judge Gordon Maag and his opponent, then-Circuit Judge Lloyd Karmeier, combined to raise $9.3 million in political contributions—nearly double the previous national record for any state judicial election.

The context of that campaign, and the events that followed the election, demonstrate the tension between expensive judicial elections and public confidence in our courts. Longtime Supreme Court analyst Lyle Denniston neatly summarized the ethics component of Avery as follows: "Should an elected judge, who accepts large campaign donations, sit on a case that directly affects the financial or business interests of the donors and their associates? Put as an ethical question, the answer would seem to be obvious: No." Sometimes, however, ethics alone do not suffice to protect constitutional rights. By passing on Avery, the Supreme Court missed a golden opportunity to clarify the protections required when politics and constitutional rights collide in the courtroom.

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In May 2003, the Supreme Court of Illinois heard oral arguments in Avery. The dispute involved a class action against State Farm on behalf of 4.7 million policyholders in 48 states. The appeal was not decided until after the November 2004 election. In other words, the appeal was pending before the Supreme Court of Illinois, and had been for over a year, by the time of the 2004 campaign. The stakes in Avery were hardly trivial. State Farm's appeal sought to overturn a $1 billion lower-court verdict, including $456 million in contractual damages.

Illinois lacks campaign contribution limits. As a result, the $9.3 million raised by Karmeier and Maag did not represent hundreds of thousands of $20 checks from Aunt Gladys and Uncle Merle. Rather, the sum largely represented contributions from frequent litigants in the Illinois courts. And State Farm more than lived up to its slogan. "Like a good neighbor" the company was indeed "there" for Judge Karmeier, who received more than $350,000 in direct contributions from its employees, lawyers, and others directly involved with the company and/or the case. Karmeier got an additional $1 million from larger groups of which State Farm was a member or to which it contributed. As is often the case, he won both the fund-raising battle and the election.

Although Karmeier himself described the fund raising as "obscene," his concern for appearances waned almost immediately upon election. Once seated on the Illinois high court, he refused to recuse himself from the Avery appeal. He then cast the deciding vote on the breach of contract claims, overturning that verdict against State Farm. The public, not to mention the opposing litigants, could be forgiven for questioning whether justice was truly served.

Was Justice Karmeier's decision legitimate, well-reasoned, unbiased? Very possibly yes, but we will never know. Overshadowing the merits of his decision is a single stark fact: Without Karmeier's vote, State Farm would have faced further proceedings on claims valued at up to $456 million. That's either a coincidence or an impressive rate of return on State Farm's investment. Which of the two it was is almost irrelevant—especially where a correlation between a contributor and a decision can't be known. In either case, the cost to the courts themselves is immeasurable.

Thirty-eight states, including Illinois, elect their supreme courts. Recent studies of judicial elections indicate that the trend toward high levels of judicial-campaign fund raising in the states began in the late 1990s. During the 1999–2000 cycle, state supreme court candidates raised $45.6 million—61 percent more than just two years earlier, and more than double the amount raised in 1994. Nine states broke aggregate candidate fund-raising records in the 2003–04 election cycle. This explosion in fund raising is not a coincidence. In 2003-04, 35 of 43 high court races were won by the candidate who raised the most funds; that's a success rate of 81 percent.

The high price of winning, however, falls hard on the public. Evidence shows a steady decline in public confidence in fair courts. Polls show that 76 percent of Americans believe that campaign contributions have at least some impact on judges' decisions in the courtroom. Far more worrisome? The fact that nationally, judges now share this view: According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half the judges surveyed themselves believe that campaign contributions influence judicial decisions. Not even the judges believe their colleagues consist only of "Untouchables."

The statistics illustrate that the public intuitively knows what constitutional theorists strive to prove—that judicial independence matters. Elected legislators are expected to serve interest-group constituencies. They are expected to build coalitions; to promise outcomes; and to be held accountable for those promises. The representative branches function best when officials are lobbied by contributors and non-contributors alike. But judges—including elected judges—are different. They function best when "lobbied" not at all, or only within the adversarial process and on the basis of law. Judges are accountable for the fundamental American promise of fair trials before impartial arbiters. Therein lies the tragic consequence of money's increasing influence in judicial elections. In the long term, we all suffer—including interest groups—when any decision reinforces suspicions that the biggest donor, and not the best case, wins.

The system cannot be left to police itself. First, it's unreasonable to expect lawyers to police judges: Recusal motions are risky propositions for litigants who can ill-afford to antagonize judges before whom they will appear. Second, it's wrong to expect judges to fully police themselves: According to the ABA's Model Code of Judicial Conduct, a "judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." The Illinois Supreme Court has the same rule. Is it a stretch to assert that Justice Karmeier's impartiality "might reasonably" have been questioned in Avery? Of course not. But Karmeier got to make that decision in his own case, as is the standard practice. In most instances it's effective. Litigants deserve due process more than "most" of the time.

In a 2002 concurrence in Republican Party of Minnesota v. White, Justice Anthony Kennedy wrote that maintaining the integrity of the judiciary and respect for its judgments is a vital "state interest of the highest order." States with judicial elections employ various mechanisms to reduce or sever the link between contributors and judges. States attempt to reduce the influence of money through publicly financed judicial campaigns, and through campaign-contribution limits that prevent large donations from individuals and organizations. In varying degrees, states have adopted canons of judicial conduct intended to place a buffer between judges and traditional interest group politics. No measures are panaceas, however, and as the role of money increases in judicial elections, the backup safeguard of mandatory recusal in any case involving a real or perceived conflict of interest may soon be necessary to preserve the respect to which Justice Kennedy refers.

Today, the Supreme Court passed on the chance to give states guidance as to when judicial recusal might be constitutionally required. States do not have the corresponding luxury of ignoring that question. The precise contours of the optimal recusal system are subject to honest debate and careful consideration. Still, Avery demonstrates that objective, peer-enforced standards, applied in extreme circumstances, should at least be part of the discussion.

Thirty states will hold supreme court elections in 2006. Although they will now lack the guidance that Supreme Court review in Avery could have provided, they are nonetheless in a position to thwart the corrosive influence of big money in their courtrooms. In that respect, they have much to learn from another Illinois case from 75 years ago.

In his 1931 trial on income tax evasion, Al Capone initially pleaded guilty, believing he would be able to plea-bargain. When U.S. District Court Judge James H. Wilkerson refused to cut a deal, Capone changed his plea, and his associates attempted to bribe the jury. But, in an extraordinary measure designed to ensure impartial justice, Wilkerson switched juries at the last moment. Wilkerson stated: "It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a federal court." States around the country must work to ensure that bargaining with elected state judges is—and appears to be—equally impossible. More modest means of doing so will suffice. But the appearance problem is just as real.

James Sample is associate counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law. (The Brennan Center, along with the Campaign Legal Center, filed an amicus brief on behalf of 12 organizations urging the Supreme Court to grant review in Avery.)

Photograph of gavel on the Slate home page by Henryk T. Kaiser/Index Stock Imagery.

The AP is reporting that three public interest groups are asking the state board that looks into allegations of judicial misconduct to investigate Illinois Supreme Court Justice Lloyd Karmeier.

Common Cause, Citizen Action Illinois and Business and Professional People for the Public Interest filed a Complaint with the Illinois Judicial Inquiry Board that alleges that donations to Karmeier from State Farm and Philip Morris created an "appearance of impropriety."

Complainants' Request for Investigation of Illinois Supreme Court Justice Lloyd A. Karmeier is based upon Justice Karmeier's violation of Canons 1, 2 and 3 of the Illinois Code of Judicial Conduct and Illinois Supreme Court Rules 61, 62 and 63(C) (1) (a) by refusing to recuse himself from, participating in, and casting the decisive vote: (1) in favor of State Farm in the Avery case, and (2) in favor of Philip Morris Incorporated in the Price case.

During a 2004 election race that broke state and national spending records for judicial seats, Karmeier accepted money from groups affiliated with the companies, according to the Complaint filed with the Illinois Judicial Inquiry Board.

Karmeier then voted in favor of the companies after taking his seat on the court.

State Farm executives sit on the boards of the state and national Chamber of Commerce groups, the complaint filed Tuesday states. The state Republican party donated to Karmeier's campaign "just days after it received similar contributions from the U.S. Chamber of Commerce," according to the complaint.

Karmeier also received $350,000 from State Farm executives, State Farm lawyers and from groups filing friends of the court briefs in the case and their attorneys, according to the groups' complaint.

The complaint also listed Karmeier campaign donations from the Illinois Chamber of Commerce and the U.S. Chamber of Commerce among those linked to State Farm. The U.S. Chamber also filed as a friend of the court in the Philip Morris case.

The Illinois Supreme Court in December tossed out a $10.1 billion fraud judgment against Philip Morris over the marketing of its "light" cigarettes.

The complaint said "thousands of dollars" were given to Karmeier's campaign by Philip Morris attorneys and groups filing as friends of Philip Morris in the case.

State Farm employees contributed to Karmeier indirectly by giving to JUSTPAC, a political action committee bankrolled by insurance companies and others who lobby for damage award caps, the complaint said.

Read the sources:

• Judicial Rule;
• The JIB Complaint;
• Avery v State Farm;
• Price v Phillip Morris

The Madison County Record is reporting that Gordon Maag filed a $110 million defamation lawsuit against the Coalition for Jobs, Growth and Prosperity, its chairman Ronald Gidwitz and treasurer Gregory W. Baise, as well as the Illinois Chamber of Commerce alleging defamation.

Law.com defines defamation as:

defamation
n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Maag’s lawsuit takes issue with a flyer that was sent to Illinois voters in October by the Coalition for Jobs, Growth and Prosperity.   

The flyer in question:

Evan Schaeffer of the Legal Underground has taken the time to go through the Flyer’s claims and compare them to the verifiable facts. http://www.legalunderground.com/2004/12/judge_maags_def.html.  I think this needs more review.

The St. Louis Post-Dispatch published an editorial today that begins: "BIG BUSINESS won a nice return on a $4.3 million investment in Tuesday's election. It now has a friendly justice on the Illinois Supreme Court." and wonders "might the new justice be tempted to do favors for the interests that lavished millions on his campaign? Given Judge Karmeier's record in the lower courts, we believe he will proceed with integrity. But you couldn't blame a citizen for wondering if it's payback time."

ILLINOIS SUPREME COURT: Buying justice
Editorial
11/05/2004
BIG BUSINESS won a nice return on a $4.3 million investment in Tuesday's election. It now has a friendly justice on the Illinois Supreme Court.  Wealthy trial lawyers, meanwhile, can wonder whether the judge they tried hard to beat will be scowling at them from the highest bench in the state. And anyone who believes in evenhanded justice should be appalled at the spectacle of a big-money effort to buy a Supreme Court seat.

Republican Lloyd Karmeier, backed by $4.3 million in money from business, won election to a Southern Illinois seat on the high court. Democrat Gordon Maag lost despite $4.2 million kicked in by trial lawyers.

The results of the ugly, dispiriting, destructive, misleading, money-drenched race send two messages to the people of the state.  The first message is actually good news: The plaintiffs' lawyers' heavy influence over judgeships in Madison County may soon decline.  The second message: Illinois' system of electing judges is dangerously broken and subject to the sleazy influence of wealthy private interests. It should be replaced with a merit-selection system similar to Missouri's.
The voters of Southern Illinois were sold a Supreme Court justice with methods worse than those used to sell them laundry detergent. After all, soap commercials are cheery affairs about cleaning things up. Judge Maag's and Judge Karmeier's allies got into the gutter and tossed mud at each other. In their TV commercials, they traded charges about going easy on pedophiles and freeing torturers of old ladies. All those charges were distortions, and both men knew it.
That's a shame, because both built respectable records as judges in the lower courts. But after watching weeks of such shameful accusations, the average voter is bound to have lost respect for both men, as well as the Supreme Court itself.
After all, might the new justice be tempted to do favors for the interests that lavished millions on his campaign? Given Judge Karmeier's record in the lower courts, we believe he will proceed with integrity. But you couldn't blame a citizen for wondering if it's payback time.

Missouri has a better way of selecting judges for its urban areas and its appellate courts. A nonpartisan panel recommends three candidates to the governor, and he chooses one. The new judge later stands for a yes-no vote in a retention election. Politics still sneak into the process, although big money is kept out, and Missouri generally gets qualified and fair-minded judges.

Big money flowed into the Karmeier-Maag race because even bigger money is at stake. That includes a $10 billion judgment against a tobacco company from Madison County that is on appeal. It also involves an effort to bring evenhandedness to the plaintiffs' lawyers' paradise that is the Madison County courts.

For decades, plaintiffs' attorneys in Madison County have padded the election coffers of local judges with little push-back from business. Not quite coincidentally, the judges of Madison County smile sweetly on plaintiffs' attorneys. Such friendly judges, combined with the county's reputation for generous juries, make it a magnet for lawsuits from all over the country, most naming big businesses as defendants.

It also has scared the bejabbers out of medical malpractice insurance companies, contributing to sky-high malpractice rates that have set off an exodus of doctors from the Metro East.  That, more than anything else, probably explains why the Republican Karmeier won by a small margin in overwhelmingly Democratic Madison County, as well as across Southern Illinois. The voters like their doctors.

That message won't be lost on Madison County's lower-court judges, who must stand periodically for retention. Besides losing the race for the high court, Judge Maag also lost his own bid for retention as an appellate judge.

The American system works because people have faith in the fairness of the courts. At this point, the people of Southern Illinois may have more faith in their laundry detergent than in their judges. And who could blame them?