State v. American Tobacco Co. et al.
Concurrence in Order by Sanders, J.
SANDERS, J. (concurring)—Respondent American Tobacco Company et al., filed its "Motion for Recusal," requesting the disqualification of Justice Talmadge from further proceedings in this case, although the only matter pending is the state’s motion for discretionary review of a partial summary judgment.
The motion is somewhat unusual in the sense that such requests for recusal are normally addressed to the sole discretion of the Justice sought to be recused rather than framed as a motion for the consideration of the entire Court. Here, however, Justice Talmadge declined recusal, thereby bringing motion forward for further consideration of the Court as a body.
American Tobacco’s motion sets forth argument and legal authority and is supported by the "Affidavit of Paul R. Raskin Regarding Motion for Recusal." The motion is purportedly based upon the provisions of RCW 2.28.030 and CJC 3(C) and 3(D). American Tobacco’s claim is summarized in the introduction to its motion:
As set forth below, the law requires not only actual fairness, but also the appearance of fairness to the reasonably prudent, disinterested person. Irrespective of whether he would or would not fairly hear the case, Justice Talmadge’s participation in hearing appeals in this case would create an appearance of unfairness because Justice Talmadge has (1) proposed legislation that would have created a new liability standard for tobacco companies and granted the very same relief that plaintiff now seeks, (2) sponsored other legislation addressing the very same disputed factual, policy, and legal issues that exist in this case, and (3) made repeated public statements expressing his view of these disputed matters. If Justice Talmadge presides, he will not only be addressing as a Supreme Court Justice the very same facts, policy and law on which he vociferously advocated his views as a Senator, but also may potentially be assessing the import of legislative facts in which he was an active participant.
Motion for Recusal at 1-2.
Thereafter American Tobacco details that Justice Talmadge served as a Washington State Senator prior to his service on the State Supreme Court and in that capacity sponsored Senate Bill 6407, which, according to American Tobacco, "would have changed the standards of liability and defenses applicable to defendants so as to grant legislatively this very same relief." Motion for Recusal at 5. The motion also recounts various statements attributed to Justice Talmadge by the press, including,
"The tobacco industry refuses to acknowledge that the use of their product causes serious health problems."
"This industry is making a profit from a product that costs everyone, including nonsmokers, millions of dollars in health-care costs every year."
"We are establishing the standard of liability for this product."
Motion for Recusal at 6 (quoting Seattle Times at B3 (Feb. 2, 1994).
The motion also references various other historical legislative and public activities allegedly undertaken by Justice Talmadge with respect to matters of particular concern to the respondents and proceeds to quote from floor debate, etc.
American Tobacco relies upon CJC 3(D) which provides "[j]udges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. . . ." and cites various authorities pertaining to the so-called "appearance of fairness" doctrine. Motion for Recusal at 13 et seq.
By order, reflecting the unanimous view of this Court, the motion to recuse Justice Talmadge has been denied.
I concur in the order of this Court based upon what is, or should be, the obvious distinction between a judge’s possible personal preference for a particular course of public policy on the one hand and the discharge of his judicial duties on the other. The respondents have prima facie established at least a historical public policy preference, however, have not, even prima facie, linked that public policy preference to the impartial discharge of any judicial duty. Such duty is not an exercise in the creation of public policy but in the application of previously defined legal principles. Public policy is sometimes defined by legislation; however, in theory it is the legislation which guides the Court not the policy preferences of the judges who sit on it. Ultimately we must rely on the character and integrity of the justice to impartially apply the law. A distinguished career of prior public services or active involvement in public affairs does not lend even an appearance that such integrity is lacking.
An explanation from The Reporter’s Notes to the Code of Judicial Conduct draws out the relevant distinction:
For example, a judge may write or lecture on a legal issue, analyzing the present law and its history, its virtues and its shortcomings; he may commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written. There is a significant difference between the statement, "I will grant all divorce actions that come before me—whatever the strength of the evidence to support the statutory ground for divorce—because I believe that persons who no longer live in harmony should be divorced," and the statement, "I believe that limited statutory grounds for divorce are not in the public interest. The law should be changed to allow persons who no longer live in harmony to obtain a divorce." The latter does not compromise a judge’s capacity to apply impartially the law as written, although it clearly states his position about improvements in the law."
E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct at 74 (1973 A.B.A.). If such be true for a sitting judge who partakes in public comment, I can see no reason why it would not be at least equally true when applied in an historical context. I posit the aforementioned encapsulates the determinative distinction in this case and, accordingly, concur in the judgment of this court that the Motion for Recusal should be denied.
Secret Sanders Index