The Louisiana Supreme Court Defended: A Rebuttal of The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function

AuthorKevin R. Tully; E. Phelps Gay
Pages281-306

Kevin R. Tully graduated from Butler University with Honors, obtained his Master's Degree in history from the University of Virginia, and earned his law degree from Washington University School of Law in St. Louis in 1982. Thereafter, he joined Christovich & Kearney, LLP, where he currently serves on the Firm's Management Committee.

E. Phelps Gay is a graduate of Princeton University and Tulane University School of Law. He is currently the Managing Partner of Christovich & Kearney, LLP. He is a past president of the Louisiana State Bar Association and has served on the Board of Directors of the Louisiana Association of Defense Counsel, the New Orleans Bar Association, the Louisiana Bar Foundation, the Louisiana Judicial College, and the Pro Bono Project.

A lie can travel halfway around the world while the truth is putting on its shoes.

Mark Twain (attributed)

"Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: 'There are three kinds of lies: lies, damned lies, and statistics.'"

Mark Twain, Chapters from My Autobiography, in NORTH AMERICAN REVIEW (1907)

Page 281

I Introduction

The purpose of this Article is to rebut, from a practitioner's point of view, the argument authors Vernon Valentine Palmer and John Levendis set forth in their Tulane Law Review article entitled, The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function.1 Briefly stated, Palmer and Levendis opine that "[s]tatistically speaking, campaign donors enjoy a favored status among litigants appearing before the justices."2 They conclude that Page 282 "the very qualities needed in the highest court-independence, impartiality, and adherence to the rule of law-may have been eroded by the corrosive effect of judicial campaign money."3

However, this attempt to draw the Louisiana Supreme Court into disrepute suffers from numerous fatal flaws. First, the Palmer and Levendis claim that campaign contributions determine judicial votes is founded on a data set that abounds with errors in recording those votes and contributions. Brought to light by our initial review of the cases, these errors are so pervasive that the Tulane Law Review has posted an erratum notice and the Dean of Tulane Law School, Lawrence Ponoroff, has written a letter of apology to the Louisiana Supreme Court.4 Both the erratum notice and the letter of apology admit that the errors call the Palmer and Levendis conclusions into question.

Second, Palmer and Levendis use an incorrect statistical methodology. As explained in the companion methodological critique by economics professors Robert J. Newman, Dekalb Terrell, and Janet Speyrer, Palmer and Levendis ignore the relevant literature on the proper statistical test for dealing with the problem of "simultaneity," which means they cannot determine whether contributions are affecting votes or whether a justice's voting record instead drives the contributions he or she receives.5Indeed, Palmer and Levendis seem to realize their statistical analysis is questionable. They claim that Louisiana Supreme Court Justices have been swayed by campaign contributions, but they later concede-and bury-in a footnote that "[i]t is worth observing that this Article does not claim that there is a cause and effect relationship between prior donations and judicial votes in favor of donors' positions."6 Palmer's and Levendis's concession -that their study does not show any cause and effect between a donation and a judicial decision-renders their assertions of improper influence, made throughout the body of their article and in their concluding paragraph, meaningless.7 Page 283

Third, Palmer's and Levendis's arguments are based on a set of assumptions divorced from the common sense reality of legal practice. For example, they assume that unanimous decisions are inherently non-controversial and throw them out of their sample. They also rest much on their analysis on the patently false notion that each justice's combined "pro-plaintiff" or "pro-defendant" voting percentage across diverse areas of law provides useful information about that justice's judicial philosophy. More fundamentally, Palmer and Levendis never analyze the legal arguments or factual issues in any one of the cases in their data set. They never show that a justice's vote was improper or lacked a sound legal foundation.

Finally, the goal of Palmer's and Levendis's article is to justify an automatic recusal rule when a campaign contributor appears before a justice. No other state has such a rule, for the simple reason that it would allow litigants to donate strategically to justices they do not want deciding their cases. Thus, even if their study was not inherently flawed and invalid, their proposed solution to the problem they supposedly discover is unwise and unworkable.

Although unpersuasive on its face, the Palmer and Levendis article-and the authors themselves-generated a certain amount of publicity.8 Moreover, although the Tulane Law Review and Dean Ponoroff have admitted the data set errors call the claims of the article into question, at least one of the authors has indicated his intention to republish with corrected data and the same conclusions.9 Because the Palmer and Levendis article is fundamentally flawed and unfairly disparages the Louisiana Supreme Court and its justices, we have written this Rebuttal.10Along with the companion critique on statistical methodology by Newman, Terrell, and Speyrer,11 it responds for the Supreme Court to the contentions Palmer and Levendis make. Page 284

II Errors In Recording Contributions And Votes

In a draft version that was circulated to the news media, the Palmer and Levendis data set was described as 181 cases decided between 1992 and 2006 with at least one dissenting vote, eighty- five of which had at least one "litigant or . . . lawyer who had donated to one of the justice's campaigns."12 This changed substantially in the final version. This is how the published Palmer and Levendis article describes their method of selecting cases for their data set:

Our analysis included every case decided by the court from 1992 to 2006 in which (1) there was a donor to a current justice before the court, and (2) there was at least one dissenting opinion. All writ applications, criminal cases, and lawyer disciplinary cases were excluded. These criteria yielded a set of 186 cases falling within eight subject areas: torts/negligence, employment/labor, domestic relations/ family law, constitutional law, government, real property, health, and "other."13

The shift from requiring a dissenting vote in each case to requiring both a dissent and a contributor before the court is a dramatic one, considering each version of the paper purports to reach the same conclusions. However, our main concern is with Palmer's and Levendis's errors in recording votes and contributions for their cases, regardless of how they were selected.

We first set out to check on a limited basis whether the Palmer and Levendis data set-the selected cases with votes attributed to the justices for "plaintiff" or "defendant" and receipt of campaign contributions from "winners" or "losers"-was accurate in recording contributions.14 To see, we examined the contributors to Justice John Weimer's campaign committee and compared those contributors to the Palmer and Levendis data set. We selected Page 285 Justice Weimer because he was the newest justice on the court, serving since 2001. Therefore, he had the fewest number of cases in the data set to review.

We went to the Louisiana Ethics Administration's website and downloaded the lists of contributors to Justice Weimer's campaign committee.15 The committee filed contribution reports covering the years 2001 and 2002. We then looked at all parties-plaintiffs, defendants, amicus or third parties-and their respective attorneys named in each of the cases Palmer and Levendis cited in reference to Justice Weimer. Next, we compared the parties and attorneys, to the extent possible, to the contributor list and the amount of contributions was noted and summarized.

To our great surprise, we found the Palmer and Levendis data set, at least insofar as Justice Weimer was concerned, contained substantial errors. Our comparison of the publicly available campaign contribution reports to the Palmer and Levendis data set shows: (1) errors in the amounts of contributions; (2) contributions where none existed; and (3) cases in which Justice Weimer did not participate. A certified public accountant verified those findings of errors in the financial contribution data attributed to Justice Weimer.16

For instance, in Fontenot v. Reddell Vidrine Water District,17Palmer and Levendis show in their data set that Justice Weimer sided for plaintiff, and that plaintiff had contributed $2,000 to the justice's campaign committee fourteen months before the decision.18 Our review of the records revealed no contribution to Justice Weimer's campaign committee by plaintiff or by plaintiff's attorneys.

In Greater New Orleans Expressway Commission v. Olivier,19Palmer's and Levendis's data set attributes a $500 contribution from the prevailing plaintiff to Justice Weimer's campaign committee,20 yet the public records indicate no contribution to the justice's...

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