Ethics experts say recusal theory in $10 billion tobacco case is defective

Plaintiffs seeking to remove Illinois Supreme Court Justice Lloyd Karmeier from review of their $10 billion judgment against cigarette maker Philip Morris advanced a theory with no stopping point, ethics experts swear.

In an affidavit that Philip Morris filed on June 9, professors Ronald Rotunda and Charles Wolfram branded the plaintiffs’ theory as “recusal by association.”

They warned it would make disqualification of judges “routine, even structural.”

Lead plaintiff lawyer Stephen Tillery of St. Louis moved for Karmeier’s recusal or disqualification on May 28.

He claimed contributions to Karmeier’s 2004 campaign create an appearance of bias, though the contributions didn’t come from Philip Morris.

They came from groups to which Philip Morris belonged, including the U.S. Chamber of Commerce and the American Tort Reform Association.

Rotunda and Wolfram wrote that recusal by association would logically extend further than cases where a party was associated with Karmeier’s supporters.

"We understand that Justice Karmeier’s candidacy was opposed by a number of membership organizations and other interest groups in which many Illinois lawyers were members or to which Illinois lawyers and other persons contributed funds to support Justice Karmeier’s opponent,” they wrote.

“If Justice Karmeier must be presumed to be fatally prejudiced in favor of any party associated with business organizations such as the U.S. Chamber and ATRA that supported him, he would also presumably be prejudiced against any lawyer whose membership organization or contribution opposed him.

“By the same defective reasoning that would lead to Justice Karmeier’s recusal here, he would presumably also be disqualified in any case in which one or more of the thousands of those Illinois lawyers appeared as counsel for a party.”

They wrote that plaintiffs’ theory would disqualify him in any suit involving a member of the Illinois Federation of Teachers, which supported opponent Gordon Maag.

“The logic of the theory might also require Justice Karmeier’s disqualification in any case brought by a party or lawyer who had refused to contribute to his campaign,”they wrote.

“Such unreasonable consequences would, of course, extend beyond Justice Karmeier. A holding here that Justice Karmeier is disqualified would also require recusal of all Justices of this Court who might find themselves in a similar situation.

“Respondents in effect seek to have a majority of this Court substitute itself for the Illinois electorate with respect to the question whether Justice Karmeier should sit as a justice of the Illinois Supreme Court in this case and potentially a large number of additional cases.

“We understand that the support of the U.S. Chamber and ATRA for Justice Karmeier’s candidacy was widely publicized to the Illinois electorate in 2003-4.”

Persons opposed to Karmeier pointed to those contributions as a reason to vote against him, they wrote. "Nonetheless, a sizable majority of voters elected him to sit as a member of this Court.”

Rotunda identified himself as professor at Chapman University, writing that he served as assistant majority counsel for the Senate Watergate Committee.

Wolfram identified himself as professor emeritus at Cornell Law School, writing that he began teaching and research in legal and judicial ethics in 1974.

Lead defense lawyer Michelle Odorizzi of Chicago filed their affidavit with a brief opposing recusal or disqualification.

She wrote that most of the plaintiffs’ arguments revolve around the U.S. Chamber, yet they cite no basis for believing Philip Morris funded, directed or controlled the Chamber’s contributions.

"Plaintiffs also ignore the fact that the Chamber does not exist to represent the interests of PM USA or any other individual member," she wrote.

"Regardless of who made them, campaign contributions that date back to 2004 cannot provide a basis for recusal in 2014,” she wrote.

“This is particularly true when the ten year old contributions came from organizations that are not parties to the current proceedings and have no personal stake in the outcome.

"When judges are elected, as the Illinois Constitution requires, it is inevitable and entirely appropriate that interest groups will support judges whose judicial philosophies they believe are most closely aligned with their own views.

“But the system would grind to a screeching halt if contributions by organizations and interest groups were sufficient to force a judge to recuse himself or herself in any case in which a member of the group was a party.”

Lead plaintiffs Sharon Price and Michael Fruth obtained the judgment in 2003, after a bench trial before Madison County Circuit Judge Nicholas Byron.

He held that by labeling cigarettes as light and low tar, Philip Morris deceived smokers into expecting health benefits.

A Supreme Court majority including Karmeier reversed Byron in 2005, finding the Federal Trade Commission authorized light and low tar labels.

This April, Fifth District appellate judges in Mount Vernon reinstated the judgment.

They found that Price and Fruth produced new evidence in the form of a Federal Trade Commission opinion that would have changed the Supreme Court’s decision.

On May 12, Philip Morris petitioned the Supreme Court for leave to appeal or for a supervisory order against the Fifth District.

(Editor's note: The U.S. Chamber Institute for Legal Reform owns the Madison-St. Clair Record).