What Big Business gets for its campaign money.

Much of the media coverage of the nasty state judicial elections in recent years has focused on the millions of dollars in campaign contributions that have come from parties appearing before the courts. But reporters and watchdog groups, I think, are often asking the wrong questions about what the donors get for their money. While it's certainly unseemly when, as the New York Times' Adam Liptak reported (sub req), judges vote with their contributors in big cases, state supreme courts are also legal policy making bodies. Their decisions affect cases that never get heard in their chambers, as well as the fate of legislation, most notably, bills enacting tort reform. The fate of such laws can affect not just one defendant but entire industries.

So it's no surprise that the states with the most expensive judicial elections in recent years are those where the courts previously have struck down, or would likely strike down, tort reform laws, for violating constitutional protections guaranteeing equal treatment, access to the courts, and the right to a civil jury trial. (These include Illinois, Mississippi, West Virginia, Georgia and Ohio.)

Now that the U.S. Chamber of Commerce has succeeded in most of its attempts to stack state supreme courts with pro-tort reform judges, we're seeing the cynical results. Take the case of Ohio.

In 1996, the Ohio state legislature passed a law capping noneconomic damages in most tort cases at $500,000 per plaintiff. Three years later, the Ohio supreme court struck down the law as unconstitutional. The decision prompted national business groups to pour money into Ohio's judicial elections, using vicious attack ads to swing the court from more moderate to extremely conservative.

In 2004, knowing full well that it would be unconstitutional, the legislature nonetheless passed a bill that was virtually identical to the 1996 law, except it was more restrictive than the old one, with a $350,000 cap on noneconomic damages in most tort cases. But legislators seemed pretty confident that the new business-friendly Supreme Court would let it fly, even though doing so would overturn years of established precedent in the state. (The state supreme court had also struck down a cap on med-mal damages in 1991.)

Trial lawyers have challenged the new law in a lawsuit over injuries from Johnson & Johnson's Ortho Evra birth control patch. The plaintiff, Melisa Arbino, landed in the hospital in 2005 suffering with life-threatening blood clots in her brain and lungs. One of the clots remains lodged in her brain, with potentially life-threatening complications, just the kind of thing that noneconomic damages are supposed to compensate for. Arbino alleges that the patch, which had much higher levels of estrogen than regular birth control pills, caused her injuries. A federal court recently kicked the case back to the state, where the new pro-tort reform judges will get a shot at it.

This is a huge case, and practically every major industry group has filed briefs in the case. Poor Arbino is up against all of corporate America: big Pharma, the National Association of Manufacturers, the U.S. Chamber of Commerce, the American Chemistry Council, the American Tort Reform Association, the National Association of Independent Business, numerous insurance industry and hospital and medical groups, and a handful of other well-funded tort reform groups have all weighed in.

Coming to Arbino's aid, besides the Ohio Academy of Trial Lawyers, is the Ohio chapter of the National Organization of Women, the NAACP, and that big-money group, Mothers Against Drunk Driving.

What are the odds that the new court will stick by the old precedent and find the tort reform law unconstitutional? Not much, I'm afraid. According to Liptak, Ohio plaintiff's lawyers won only 17 percent of their cases after the conservative takeover, compared with 64 percent before 2003. If the new damage cap is allowed to stand, most of those cases probably won't even make it to the court to lose there. The chamber's money will certainly look like a wise investment indeed.

Comments

[Nina Mason]

What you described is happening in Georgia. For the past year, I've been helping develop some of the messaging against the powerful special interests that backed a candidate for supreme court (yet lost) and are now trying to add seats to the court. This article, by a former judge, appeared today in the Daily Report. I thought it would be of interest to Tortellini readers. I can be reached at lexcommunications@gmail.com.

Nina Mason
President, Lex Communications

Special interests would buy courts

By IRWIN W. STOLZ JR., Special to the Daily Report

I AM CONSTRAINED to respond to “Dialogue, not diatribe, on elections,” Shannon Goessling’s At Issue piece
from Dec. 19.

First, I hope she is wrong. It is my fervent hope that the people of Georgia will never have to endure another judicial election like that of last summer and fall. In the future let us have contests, where needed, between well-qualified attorneys and judges.

The experience of the last statewide judicial race did not meet that standard. It
wasn’t that the challenger [J. Michael Wiggins] was a bad person—he simply wasn’t qualified. So why were “special interests” supporting him to the extent of contributions of $1.3 million dollars? The answer was crystal clear to 63 percent of the electorate. The special interests were trying to buy a seat on the highest court of our state.

Georgians overwhelmingly rejected the mischaracterizations, glib advertising, smoke and mirrors, and partisan
political pressure from the highest level and chose quality and proven judicial experience over hot air, no substance
and a big bankroll.

Ms. Goessling states that my comments “reflect the redundant ‘lump it all in together and make a devil out of it’
approach”. All members, partners or whatever of the Safety & Prosperity Coalition lumped themselves together when each became a member of “the coalition.” There was no need for me to lump them together; they did it
themselves.

I am disturbed by Ms. Goessling’s characterizing my special interest as “the plaintiff’s bar.” This is typical—paint
the adversary with catchphrases and labels such as “activist judge,” “plaintiff’s bar,” “trial lawyer,” etc., and of
course those terms are never defined. One or two examples illustrate their lack of substance. For instance, most
cases filed in the courts, other than those arising out of domestic relations, are by business clients—not tort cases
(personal injury). Are these lawyers not part of the “plaintiff’s bar?” Similarly, the reference to “trial lawyers” should
be defined. The last time I participated in a trial, was not my adversary counsel representing the defendant a trial
lawyer?

To the Safety & Prosperity Coalition and their ilk, is an “activist judge” one who does not rule the way they like? If that is the case, the loser in every trial and appellate case is the victim of an activist judge or judges. One rarely mentioned fact is that in the Supreme Court and the Court of Appeals, the author of the opinion did not decide the case but only acted as the spokesperson for the court or its majority.

Now I would pose these questions to the Southeastern Legal Foundation and the other “partners” in the Safety & Prosperity Coalition:

1. Are two additional Supreme Court justices really necessary? The court says no. How does the caseload and
jurisdiction compare with that of other similar states? Is the Supreme Court’s caseload anticipated to rise? If so,
what projection has been established?

2. Have you considered the cost of adding two justices to the Supreme Court?

3. Have you determined where two additional justices and their staffs would be officed?

A trip to the State Judicial
Building would reveal that it is so overcrowded the clerks of the Supreme Court and the Court of Appeals are located outside the judicial building. Are the proposed two new justices to be segregated from the remainder of the court?

If the “coalition” or any of its partners are seriously concerned about the state of the judiciary in Georgia, are they
willing to make a financial commitment equal to that made to Mr. Wiggins’ late campaign to have the General Assembly allocate to the judicial branch of government a full 1 percent of the state’s budget? If you really want to be constructive and have real credibility—put your money where your mouth is.

The judiciary in Georgia is not for sale. Free speech—always. Dirty judicial politics—never.

IRWIN W. STOLZ JR. is a former judge on the Georgia Court of Appeals, former president of the State B