Alliance for Justice Report in Opposition to the Nomination of William H. Pryor to the United States Court of Appeals for the Eleventh Circuit
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Opposition to Tobacco LitigationPryor was an outspoken opponent of the lawsuit brought by other states against the tobacco companies to recover the costs of Medicaid treatments for smoking-related illnesses. Pryor went on a public crusade to persuade other state attorneys general not to join the suit. In a Wall Street Journal editorial, Pryor insisted that “this wave of lawsuits is about politics, not law, and money, not public health.”125 In another interview, Pryor said that “the recent government suits against tobacco and firearms industries trample upon the rule of law. The aim of this litigation is to shift the awesome powers of legislative bodies to the judicial branch of the government.”126 Arizona Attorney General Grant Woods, a fellow Republican, criticized Pryor for his public campaign against the states’ lawsuit: “He’s been attorney general for about five minutes, and already he’s acted more poorly than any other attorney general.”127 Instead of suing the tobacco companies, Pryor argued that states should raise taxes on cigarettes to recoup medical costs for treating sick smokers.128 Pryor’s highly publicized failure to persuade state attorneys general to raise taxes on cigarettes instead of suing the tobacco industry earned him a spot on the Wall Street Journal’s list of the “losers of ‘97.”129 Pryor’s opposition to the tobacco lawsuit was ostensibly the result of a task force study into the merits of the litigation. When Pryor was a deputy attorney general, then Attorney General Jeff Sessions asked him to chair a state task force to determine whether Alabama should join the states’ lawsuit against the tobacco industry.130 Pryor and the task force prepared an 89-page report, which concluded that the states’ lawsuit was nearly impossible to win, and advised against Alabama joining the suit.131 The Pryor task force also decided that smoking-related health costs are not excessive because smokers die young, saving taxpayers money on Social Security, pension benefits, nursing homes, and insurance.132 Some suspect, however, that Pryor’s real motive in opposing the lawsuit was his desire to obtain contributions for his 1998 election campaign. In the winter of 1997, former Republican National Committee Chairman Haley Barbour co-hosted a fundraiser in Washington for Pryor’s 1998 campaign.133 Despite Pryor’s public promise not to take contributions from the tobacco and gambling industries, seven members of the fundraiser’s host committee were tobacco lobbyists, including the vice president for federal relations at Phillip Morris.134 Four of the seven tobacco lobbyists were reported to have made contributions to Pryor’s campaign.135 Pryor maintained that he took “absolutely nothing” from tobacco companies or their political action bank accounts, explaining that the tobacco lobbyists were “Alabama connections who [happened] to have tobacco accounts as part of their portfolios, but did not write checks to me.”136 Local attorneys criticized Pryor for taking tobacco money and for hiring Karl Rove137 as a campaign consultant, because Rove had represented Phillip Morris from 1991 through 1995: “All you have to do is follow the money trail to understand where the attorney general’s allegiance is.”138 Pryor was also suspected of helping the tobacco companies in other ways. At Sessions’ request, Pryor attended confidential meetings with other state attorneys general at which they discussed legal strategy for the tobacco lawsuit. According to Mississippi Attorney General Mike Moore, a leader of the litigation effort, Pryor “would go to all of those meetings and take copious notes.”139 Pryor also met with representatives of the tobacco companies. Moore apparently suspects that Pryor may have shared some of the states’ legal strategy with the defendants: “Whether it was as surreptitious as sneaking notes to the other side, I don’t know. But tobacco lobbyists saw him as a friend. He was their friend. He defended them at all costs.”140 What is known is that Pryor shared his task force report with the tobacco companies before he shared it with the other state attorneys general. On March 13, 1997, the day before Mississippi Attorney General Moore (and other state attorneys general) received a copy of the Alabama task force’s report, the tobacco companies filed a copy in the Mississippi Supreme Court as part of their response to Moore’s suit.141 Moore expressed considerable anger at Pryor’s reported assistance to the tobacco companies: “Bill Pryor was probably the biggest defender of tobacco companies of anyone I know. He did a better job of defending the tobacco companies than their own defense attorneys.”142 As late as three months before the 1998 election, Pryor continued to defend his decision to stay out of the tobacco litigation: “I’ve got to do what the law calls for. I will not file a lawsuit to make some trial lawyer supporters rich.”143 However, less than a month before the election, Pryor joined negotiations aimed at reaching a national settlement with the tobacco industry.144 In the eventual settlement, Alabama received close to a billion dollars less than did Mississippi, its far less populous neighbor. Press reports attributed this poor result for Alabama to Pryor’s refusal to join the suit earlier.145 Access to JusticePryor has worked to limit access to justice, and strongly criticized the plaintiffs’ bar. In addition to his opposition to tobacco and gun suits, he has defended binding arbitration and worked to limit punitive damages. In a 1997 interview, Pryor told a Wall Street Journal reporter that “no issue [was] closer to [his] heart” than trying to rein in the plaintiffs’ bar.146 In a speech to members of the [Ronald] Reagan Forum, Pryor displayed a particularly hostile attitude towards trial lawyers that raises serious concerns about his ability to be impartial in class action suits: This taxation through litigation is accomplished in a remarkably inefficient manner as huge sums of money are skimmed off the top by those leftist bounty hunters also known as trial lawyers. Trial lawyer John Coale of Washington, D.C. recently observed that trial lawyers enjoy red meat and liquor so much that they would dare not sue the producers of those products. Heaven help us, however, if there are some teetotalling vegetarians among the ranks of ATLA who are unknown to Mr. Coale.147 In a speech to the American Shooting Sports Council, Pryor even suggested that trial lawyers benefit from the improper influence of particular judges: “When [trial lawyers] file [suits against the gun and tobacco industries], the[y] often carefully select courts where they have cozy relations with judges who are politically susceptible to setting aside traditional legal doctrines. The judges can reward their wealthy trial lawyer friends, who have been known to contribute to judicial election campaigns or sit on judicial nominating commissions, and the judges can then bask in the media attention that accompanies their so-called landmark rulings.”148 In 1998, Pryor defended a challenge to guidelines promulgated by the state’s insurance commissioner that allowed insurers to include binding arbitration clauses in their policies, removing consumers’ disputes from juries in favor of arbitrators, who often have ties to the industry involved in the dispute.149 Pryor said that he preferred out-of-court arbitration over insurance claims because arbitration keeps the dollar awards low, and this, in turn, helps Alabama’s economy.150 For his efforts to deny injured plaintiffs access to and relief from the civil justice system, Pryor has received a number of awards and endorsements from conservative groups supported by big business. The American Tort Reform Association gave Pryor its Civil Justice Achievement Award, and the Alabama Citizens for a Sound Economy (CSE) presented its 2000 “Friend of the Taxpayer” award to Pryor.151 The Alabama chapter of CSE chose Pryor for the award based on his efforts to curb “excessive punitive damage awards,” and his criticism of lawsuits against the tobacco and gun industries.152 In 2002, Pryor, addressing members of the American Tort Reform Association, attributed his 2002 re-election to the endorsements of the Business Council of Alabama, the Civil Justice Reform Committee, and other members of the business community.153 Work Against Interests of Abused and Neglected Children In 1988, the Bazelon Center, the American Civil Liberties Union of Alabama, and the Southern Poverty Law Center filed a class-action lawsuit in federal court against the Commissioner of the Alabama Department of Human Resources (DHR) on behalf of foster children claiming that the inadequate care and treatment they received while in DHR custody violated their rights under the U.S. Constitution, § 504 of the Rehabilitation Act, and the Adoptions Assistance and Child Welfare Act.154 The case never went to trial because the plaintiffs’ lawyers and the state entered into a 1991 consent decree that required the state to provide more services to children with emotional and behavioral disabilities in the custody of the state.155 Five years later, even though the state had not fulfilled the terms of the decree,156 a new DHR Commissioner appointed by Republican Governor Fob James asked the federal court to vacate the consent decree, or at least to narrow the plaintiff class.157 Pryor, who had recently been appointed Alabama’s Attorney General, represented the Commissioner.158 Pryor argued that the federal judge should vacate or modify the consent decree because the abused and neglected children who had brought the suit never had standing, and because there had been a significant change in the law upon which the consent decree had been premised.159 After participating in oral arguments, Pryor told reporters that he wanted to do away with the state’s settlement, and was not necessarily concerned about whether his actions protected children: “It matters not to me whether or not [they do]. My job is to make sure the state of Alabama isn’t run by [a] federal court. My job isn’t to come here and help children.”160 Judge Ira Dement rejected both of Pryor’s arguments, and criticized the state for not meeting the needs of the children: Principles of federalism normally dictate that federal courts give states wide latitude to operate their public institutions…However, when a state refuses to adopt and maintain minimal constitutional, federal statutory and common-law standards in its public institutions, the state forces federal involvement…Accordingly, the Court will not hesitate to use any and all measures necessary to insure Alabama’s compliance with the consent decree…Among the sanctions that the Court will consider if defendant fails to rapidly make all reasonable efforts to come into compliance are: civil fines, receivership and/or judicially-ordered financing. While the Court does not desire to take such drastic steps, the Court will not back away from its responsibility to the Constitution and to the abused and neglected children of Alabama.161 Ethics Pryor’s record raises serious questions of integrity and political independence that are essential to a federal appellate judge. As one of the founders of the Republican Attorney Generals Association (RAGA), Pryor helped to create a system whereby Republican attorneys general solicited campaign contributions from the same corporations they were obligated to regulate. There are also suggestions that Pryor may have improperly revealed confidential legal strategy information to the defendants in the states’ tobacco litigation. Republican Attorneys General Association (RAGA). In 1999, Pryor helped found the Republican Attorneys General Association (RAGA).162 Pryor said that he helped form this partisan organization based on his concerns about the dwindling number of Republican attorneys general and the public-private lawyer alliance in the tobacco litigation: “Two years ago, I warned that the lawsuits filed by my fellow state attorneys general against the tobacco industry threatened the entire business community. To curb such `lawsuit abuse,’ the business community must be heavily engaged in the election process as it affects legal and judicial offices.”163 RAGA solicits funds from corporations that may be the subject of state investigations and does not identify its donors.164 Press reports indicate that RAGA received contributions in 1999 from Microsoft, Ameritech, and Aetna, corporations that either were embroiled in, or were seeking to prevent, lawsuits by states.165 Despite suggestions from both Democrat and Republican attorneys general that accepting these contributions and refusing to identify donors put attorneys general in an ethically troubling position, Pryor said: “I am proud to support [RAGA], and it does not create a conflict of interest.”166 Upon being asked for a copy of the list of corporate contributions to RAGA, Pryor said: “I don’t want corporations to be punished and targeted by trial lawyers. The law does not require [disclosure]. Should we do more than the law requires? I don’t really think so. The last thing I want to do is to try to make the businesses that support us a target for trial lawyers.”167 Contrary to Pryor’s assertion, however, RAGA’s solicitation of contributions from the corporations the state attorneys general regulate does create a clear potential conflict of interest. Rule 1.7(b) of the Alabama Rules of Professional Conduct expressly provides, in relevant part: “A lawyer shall not represent a client if the representation of that client may be materially limited . . . by the lawyer’s own interests.”168 According to the comment to the rule, the critical question is whether the conflict “will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.”169 When RAGA members solicit or accept contributions from corporations that are the subjects of investigations or enforcement actions, they create a direct conflict between the “lawyer’s own interest”—campaign contributions—and the interests of his or her client, the state. The desire to raise soft money contributions may well “materially interfere with the [attorney general’s] independent professional judgment” about the course of action to pursue on behalf of the state in any proceedings against the contributor. A number of Republican attorneys general have been critical of RAGA. Mike Fisher, Pennsylvania’s Republican Attorney General said that he chose not to join RAGA because “I am a Republican and I try to keep politics out of my business as attorney general.” Grant Woods, a former Republican attorney general of Arizona, at a conference of Republican attorneys general, advised the other attorneys general not to get involved with RAGA: “We’re a family, and families can disagree, but don’t [join].”170 Ohio Attorney General Betty Montgomery, after initially joining RAGA in 1999, dropped out in the beginning of 2000 because she was “uncomfortable with the time it was taking and the national fund raising,” which in Montgomery’s mind “raised some questions about who [RAGA was] raising money from.”171 Georgetown professor Roy Schotland, an election law specialist, was also critical of RAGA’s fundraising scheme, comparing it to money laundering.172 Mississippi Attorney General Mike Moore, a Democrat, was also critical of Pryor’s motives in founding RAGA: “Pryor started RAGA. That’s the biggest mistake that happened to AGs in this country. For the last four years, they’ve raised money from big business to keep themselves in office. They hold these big fancy meetings. They say, `You can come and have a meeting with the AGs. You can have personal access. We’ll give you a few hours with the AGs,’ they say. I just think it is wrong. There have been efforts to form Democratic AG groups, and I’m opposed to those too. AGs have to be independent. It’s important that you not be bought and paid for. It’s just wrong.”173 Because RAGA does not disclose its contributors, it is impossible to determine for certain whether any solicitation by Pryor violated his ethical obligations to the state of Alabama. He should be questioned closely regarding the list of RAGA donors, his role in soliciting those contributions, and whether any of the contributors were the subject of a pending investigation or enforcement action by the Alabama Attorney General’s office. Similar questions should also be asked about Pryor’s solicitation of campaign contributions for his own re-election campaigns. Were his actions on behalf of the citizens of Alabama compromised in any way by his desire to finance his re-election? Tobacco Litigation. As discussed above, during the initial stages of the tobacco litigation, Pryor was attending confidential strategy meetings with other state attorneys general, and, at the same time, allegedly communicating with tobacco industry officials. Mississippi Attorney General Mike Moore has expressed his suspicions that Pryor may have leaked elements of the states’ legal strategy to the tobacco company defendants.174 If so, this would also constitute a serious breach of Pryor’s professional obligations. The state attorneys general who were preparing their suit against the tobacco companies shared a common interest in obtaining redress for their states for Medicaid expenses incurred as a result of smoking-related illness. They were meeting, apparently in confidence, to discuss legal strategy and were likely exchanging attorney work-product and, perhaps, confidential attorney-client communications. Under such circumstances, Pryor, as well as the other attorneys general, would have been under a fiduciary obligation not to disclose those confidences or to use them against the interests of the other plaintiff states.175 Revealing confidential legal strategy to the tobacco defendants would constitute a most serious breach of that fiduciary obligation. In this area as well, Senators must question Pryor closely about his actions. Directory: blog blog -> Ap u. S. History presidents list the Young Republic, 1788-1815 George Washington, 1789-1797 blog -> Sci-145: Introduction to Meteorology Lecture Note Packet 3 Chapter 9: weather forecasting blog -> Critical Kent: The Topographies Project: Beaches (2015). 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