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A sharply divided 5th U.S. Circuit Court of Appeals on Sept. 5 denied a petition for rehearing en banc of a panel’s decision to recuse a judge from a tobacco suit because a decade ago he was erroneously linked to an amicus brief addressing issues raised in the case. The 6-6 decision to deny a rehearing in Republic of Panama v. American Tobacco Co. and Sao Paulo State of the Federative Republic of Brazil v. American Tobacco Co. sparked a strongly worded dissent. The panel’s decision “dangerously erodes the discretion that Congress has assigned to federal judges in matters of recusal while opening a new, broad avenue for litigants to avoid appearing before a judge they perceive to be unfairly disinclined to favor their side of a case,” the dissenters said. “I think the dissent is trying to get the attention of the [U.S.] Supreme Court,” says David Schenck, a partner in the Dallas office of Hughes & Luce and a former law clerk at the 5th Circuit. Eight judges have to agree for the case to be heard by the full court, Schenck says. Having six judges dissent in a decision not to rehear a case en banc is highly unusual, he says. George Fowler, an attorney for the plaintiffs, says he plans to file an application for writ of certiorari with the U.S. Supreme Court. Fowler is a partner in Fowler, Rodriguez & Chalos in New Orleans. “It is an absolutely terrible decision for judges all over the country,” Fowler says. Schenck says every lawyer has clients and takes positions on issues before becoming a judge. “Are those issues going to hang over him like Damocles’ sword?” he asks. If the decision stands, Schenck says, lawyers who aspire to be judges will be reluctant to become involved in controversial issues. “That’s just not the way lawyers ought to handle themselves.” But Kenneth Bass, an attorney representing Brown & Williamson Tobacco Corp., one of approximately a dozen tobacco entities named as defendants in the two suits, says a judge should be recused to prevent even the appearance of partiality. The facts in this case “all add up to recusal,” says Bass, a partner in Kirkland & Ellis in Washington, D.C. ‘ALARMING PRECEDENT’ Panama filed the suit in 1998, alleging that the defendant tobacco companies conspired to conceal the health hazards and addictive nature of smoking. The tobacco companies, which want the cases consolidated with several other suits pending in Washington, D.C., moved for the recusal of U.S. District Judge Carl Barbier, a 1998 appointee of President Bill Clinton. Barbier, who presides over a New Orleans court in the Eastern District of Louisiana, had remanded the case to a state court in Louisiana. In documents filed in their appeal to the 5th Circuit, the defendants noted that Barbier’s name appeared on a Louisiana Trial Lawyers Association motion to file an amicus brief in 1991 in a tobacco products liability case before the Louisiana Supreme Court. The brief was “harshly critical” of the tobacco companies and set forth conclusions on disputed issues in the suit brought by Panama, the defendants alleged in the documents. According to the dissent in the 5th Circuit, Barbier’s term as LTLA president ended six months before the association filed its motion, and his name was mistakenly included on the motion. Bass alleges Barbier was serving on the LTLA’s governing body when the association discussed and ultimately decided to file the amicus brief. In their appeal, the defendants said the LTLA’s brief set forth as “facts” many of the allegations that the plaintiffs have included in the current case and accused the tobacco companies of “bad faith.” The defendants also noted in their brief that the name of Michael St. Martin, an attorney representing Panama in the current case, appeared on the amicus brief. In July 2000, a three-judge panel of the 5th Circuit reversed Barbier’s order denying his recusal from the suit filed by Panama and vacated his order remanding the case to a state court. “The trial judge’s assertions that he did not participate directly in the writing or researching of the amicus brief do not dissipate the doubts that a reasonable person would probably have about the court’s impartiality,” the panel said in the 2000 opinion written by Judge Carl Stewart. Bound by precedent set by the first panel’s decision, a second panel of the 5th Circuit took the same action on May 14. But Judge Robert M. Parker, a member of the second panel, said in a concurring opinion that he believed the decision by the first panel was wrong because it requires recusal on the basis of a judge’s public statements on the law prior to taking the bench. Parker and Judge Jacques Wiener wrote the dissent on the petition for a rehearing by the full court. They were joined in the dissent by 5th Circuit Chief Judge Carolyn King and Judges Patrick Higginbotham, Eugene Davis and James Dennis. In the opinion, the dissenters stated: “Never before has any court accepted ‘issue recusal’ as a ground for reversing a judge who in his own exercise of discretion, concluded that his recusal was not required. The panel decision that this court has refused to rehear en banc sets an alarming precedent by doing precisely that, and trivializes our oath in the process.” Two members of the 5th Circuit — Judges Rhesa Barksdale and Fortunato Benavides — did not participate in considering the petition for rehearing.

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