Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

• Email This
• Print
• Comments (2)
• Trackbacks

Unlike the titles to many of my posts, this is not a rhetorical question. I really don't know the answer.

The background is that a couple of weeks ago the U.S. Supreme Court ruled in a 5–4 decision in the Citizens United case that corporations can freely spend money in federal election campaigns. Pandomonium among liberals ensued, with Keith Olbermann nearly stroking out on live TV. But don't worry. If anything happens to Olbermann, Ben Affleck is willing to take over.

Here are links to Citizens United coverage by the Wall Street Journal and NMC. 

Am I wrong that corporations were already finding ways to funnel all the money they wanted into election campaigns? For instance, this article discusses corporations funneling millions of dollars into elections via the U.S. Chamber of Commerce. 

The article states:

The Chamber has a several-pronged approach in its campaign to eviscerate the public's right to take the country's more detested industries to court. One is to funnel major industry money into state election campaigns, especially races involving judges and state Attorneys General.

On September 11, 2001, a most unfortunate day for a major news story to appear, the Wall Street Journal ran an eye-opening article by Jim VandeHei about how some of this country's largest corporations were pouring millions of dollars into the Chamber, allowing companies to hide behind the Chamber's logo while the group did their dirty work.

Last fall, for example, Wal-Mart Stores Inc., DaimlerChrysler AG, Home Depot Inc. and the American Council of Life Insurers all kicked in $1 million each for one of the chamber's special projects: a TV and direct-mail advertising campaign aimed at helping elect business-friendly judges.

Indeed, that year the Chamber raised over $5 million targeting judges in Michigan, Mississippi, Ohio, Indiana and Alabama who had, according to the Journal, "rendered verdicts against one or more of the companies contributing to the effort."  

No wonder secrecy is a hallmark of the U.S. Chamber/ILR's strategy when getting involved in these electoral races. Indeed, the organization sometimes goes to great lengths to keep its involvement and funding a secret.

This leaves me wondering about what will be the practical difference in the new law, if any.

• Email This
• Print
• Comments
• Trackbacks

Stop and ask the first nine people you pass on the street if it would be fair for a judge to decide the case of someone who contributed $3 million to the judge's campaign and chances are, all nine people will tell you that it would be unfair. But at the U.S. Supreme Court, that very issue garnered the slimmest 5-4 majority decision that the judge in question should have recused himself.

The case was Caperton v. A.T. Massey Coal Co. Here is the Court's opinion. If you don't like reading judicial opinions, then read John Grisham's The Appeal , which was based on the case. The Court's majority opinion reached the correct result and I agree with this observation by the New York Times:

Indeed, the only truly alarming thing about Monday’s decision was that it was not unanimous. The case drew an unusual array of friend-of-court briefs from across the political spectrum, and such an extreme case about an ethical matter that should transcend ideology should have united all nine justices.

The purpose of our nation's justice system is to right the wrongs. The majority opinion did that, as noted by the Los Angeles Times:

In ruling that a justice on West Virginia's highest court should have recused himself from a case involving a campaign benefactor, the U.S. Supreme Court has righted an egregious wrong. More important, the 5-4 decision will encourage judges to avoid both the appearance and the reality of conflicts of interest.

It is disturbing that Chief Justice Roberts and three other hard line conservatives would sanction a clear wrong. The dissent raises the possibility of cases being flooded with motions for recusal. But isn't that better than judicial elections being flooded with special interest cash from individuals and groups who know that the Supreme Court will allow an appellate judge to decide the case of a party who contributed millions to the judge's campaign? Plus, I'm not buying the dissent's argument. How many motions for recusal will be filed based on campaign contributions measured in the thousands or less? Especially since the majority opinion makes clear that recusal would not be required in most instances.

The case hits close to home in Mississippi given the recent judicial bribery scandal. In February a Mississippi Bar Task Force established to make recommendation to strengthen public confidence in the legal system issued this report that concluded that money was the root of public mistrust in the legal system. With respect to Mississippi Supreme Court elections the task force stated:

For some twenty years each election has seen huge amounts of money spent, money largely contributed by donors who have a direct stake in the outcome of judicial decisions.

The Task Force recommended that future justices of the Mississippi Supreme Court should be appointed in order to address this problem. The Task Force is correct, as is the majority's opinion in Caperton. 

• Email This
• Print
• Comments
• Trackbacks

After the 2004 presidential election it appeared that the Democratic Party was dead as a national force. If they could not beat Bush in 2004, they simply could not win on the national scale. Regardless of your political views, it was obvious that the Republicans played the political game much better than the Democrats. But what a difference four years and Barack Obama makes. Now people are saying the same things about the Republican Party. Simply put, President Obama and his team do not get out politicked by the the Republicans.    

With the appointment to the Supreme Court Monday of Sonia Sotomayor, Obama made a political maneuver that a few years ago Democrats appeared incapable of making. Here are two articles discussing the politics of the appointment: 1, 2. The beauty of the appointment was that it both played to Democratic base and threatened to further drive a wedge between Republicans and swing voters. One article noted that: 

He played smart base politics with the historic selection of a Hispanic (a first) and a woman.

The other article noted:

By nominating Circuit Judge Sonia Sotomayor to be the first Hispanic justice on the U.S. Supreme Court, President Barack Obama all but dared Senate Republicans to risk alienating Latinos by trying to block her confirmation.

It was a foregone conclusion that Obama would appoint someone who Republicans viewed as a "liberal." By appointing a Hispanic woman ,Obama should strengthen Democratic popularity with Hispanic and women voters. The more Republicans attack Sotomayor, the more they risk alienating Hispanic voters, a group who Republicans are surely not ready to give up on.

While Senate Republicans will be under pressure from their base to attack Sotomayor, that would be politically foolish. Baring an unforeseen scandal, Sotomayor will be confirmed by the Senate. It makes little sense for the Republicans to alienate swing voters in order to pander to a base who they cannot lose. What is the Rush Limbaugh wing of the party going to do, start supporting Obama? The President will likely get to fill at least two more seats on the Court, so the Republicans should save their attacks for the next "liberal" appointment.

Of course, the fractured Republican Party may cave to its base and attack Sotamayor. If so, look for the attack dogs to be senators from red states like Mississippi that are locked up for the Republicans and have a low Hispanic population. Republicans should instead focus on regaining the party's identity and determining who will lead the party going forward.    

• Email This
• Print
• Comments
• Trackbacks

Rather than try to reinvent the wheel on Justice Souter's retirement and speculation on possible replacements, I am providing links to articles discussing these issues:

Wall Street Journal Law Blog

SCOTUS Blog  (a blog dedicated to the U.S. Supreme Court).

Associated Press speculation on possible replacements

• Email This
• Print
• Comments (1)
• Trackbacks

There is a good Bloomberg analysis of the recent pro-consumer decisions by the U.S. Supreme Court. Among the key points:

The Wyeth case illustrated one of the challenges companies face in some Supreme Court cases: persuading members of the court’s conservative wing to limit the powers of state courts and legislatures.

Clarence Thomas, a justice who typically joins the court’s conservatives on social issues, sided with the pro-consumer majority in the Wyeth case. Thomas wrote that the high court shouldn’t block state product-liability lawsuits simply because they interfere with federal objectives.

Similarly, Thomas and Justice Antonin Scalia, another conservative on social issues, have said the Constitution doesn’t put any limits on damage awards.

The entire article is available at the above link.

• Email This
• Print
• Comments (1)
• Trackbacks

The Supreme Court issued a one sentence order today dismissing the appeal of an $80 million punitive damages verdict in a tobacco case against Philip Morris. There are stories on the decision here and here. The plaintiff's actual damages were $800,000.

Business interests hoped that the Court would use the case to set a firm limit on punitive damages. The Court did not, however, apparently accepting the Oregon Supreme Court's finding that Philip Morris' conduct was "extraordinarily reprehensible." 

The practical effect of the ruling is that it will weaken defense arguments that punitive damages are limited to a single digit ratio compared to the plaintiff's actual damages. Here, the actual-punitive ratio was about 100 to 1. This makes it hard for a defendant in a case with a modest actual damages award to argue that its punitive exposure is capped no matter how bad its conduct was. I like the flexibility that the decision leaves courts to evaluate punitive damages awards.

• Email This
• Print
• Comments
• Trackbacks

I have reviewed several blogs discussing the U.S. Supreme Court's new drug preemption opinion in Wyeth v. Levine. My favorite is at the WSJ blog. Their analysis of the decision is concise and not slanted towards either side.

• Email This
• Print
• Comments (1)
• Trackbacks

In its February 23, 2009 opinion section the Clarion-Ledger refers to a pending U.S. Supreme Court case out of West Virginia that involves whether an elected judge must recuse himself/ herself from cases involving one of the judge's political contributors. Here is the editorial. 

The case is straight out of John Grisham's The Appeal. A defendant lost a $50 million verdict, appealed and contributed $3 million to a supreme court candidate while the appeal was pending. The candidate won, refused to recuse himself from the contributor's case and voted to overturn the verdict. The Ledger states:

Mississippi's current quagmire of judicial corruption cases - interposed against a decade of tort reform battles that have pitted big spending trial lawyers against bigger spending business and medical interests in judicial elections - will focus much attention on the high court decision in the West Virginia case.

Regardless if the contributions come from attorneys arguing cases before the judge or from business/medical interests whose assets are at risk in cases, concerns about impartial judges are real.

The Ledger lays all this out and then does not take a position on what should be done.

It will be a crying shame if the Supreme Court does not find a constitutional violation when judges decide cases involving large campaign contributors. In federal court non-elected judges recuse themselves from cases involving companies whose stock the judge owns. Similar rules should apply to state court cases when there is any concern of impartiality, such as large campaign contributions. 

I would like to see two things in Mississippi to return the public faith in the judiciary and legal system:

1. an appointed judiciary system; and
2. rules prohibiting the hiring or association of an attorney on a case because of a perceived personal relationship between the attorney and the judge.

The first proposal would have to involve the legislature. But the second proposal could be imposed by the Mississippi Supreme Court by adding a rule to the Mississippi Rules of Professional Conduct.