The Madison County Record Jun. 13, 2014, 11:29am

Illinois Supreme Court Justice Lloyd Karmeier claims plaintiffs in a racketeering suit against State Farm changed their theory of liability so they can expand their discovery of records from his 2004 election.

His lawyer, Courtney Cox of St. Louis, protested the change in a June 5 brief seeking to block a subpoena on Karmeier’s records.

“Seeking to enlarge the scope of discovery for their impermissible fishing expeditions, plaintiffs now apparently attempt to assert a theory of liability which is not found in the complaint, which they call the tainted reversal theory,” he wrote.

Cox wrote that they now claim they don’t have to prove that State Farm and Karmeier had a specific agreement on Avery v. State Farm, a billion dollar class action judgment that the Supreme Court reversed in 2005.

“Rather, they now claim that all they have to show is that plaintiffs were denied an impartial forum in which to adjudicate their claims, because Justice Karmeier’s participation in the Avery reversal tainted that entire proceeding,” Cox wrote.

He opposed any bid to mix the new theory with a racketeering claim.

Cox wrote that every racketeering activity identified in federal law consists of a crime under state or federal law. He also wrote that a tainted tribunal resulting from the alleged bias of a judge does not constitute a crime, and a due process violation is not a racketeering activity.

“A review of the list of enumerated racketeering activities reveals that there are only two possible activities that could arguably apply to this case,” he wrote,

“The first arguably applicable activity is mail fraud, which plaintiffs previously asserted was the racketeering activity they are alleging.

“There are no allegations that Justice Karmeier was involved in any acts of mail fraud.

“The second arguably applicable activity is bribery, which plaintiffs have not directly alleged, but have insinuated by hinting that Justice Karmeier’s vote in Avery was related to State Farm’s financial support.”

He wrote that plaintiffs filed 329 pages of exhibits and claimed the documents placed Karmeier squarely at the center of the racketeering enterprise.

“Plaintiffs are correct that these documents tell a compelling story, but not the compelling story they claim,” he wrote.
“Rather, they show that Justice Karmeier is fair, impartial, and highly qualified to serve as a Supreme Court justice.

“Further, none of these documents indicate Justice Karmeier participated in either of the only two possible predicate acts, mail fraud and bribery.”

He pleaded for First Amendment privilege of free association.

“Plaintiffs ask this court to ignore the First Amendment or render it toothless,” he wrote. “But, the First Amendment has no greater importance than here.”

He wrote that plaintiffs withdrew a request for Karmeier’s tax returns, after obtaining his income and asset disclosures from the Court.

Also on June 5, attorney Patrick Cloud of Edwardsville supported Karmeier’s position in a brief for State Farm.

“State Farm cannot sit idly by while plaintiffs grossly misstate the factual and legal issues in this case in an attempt to justify the vastly overbroad and invasive subpoena they have issued to a sitting Justice of the Illinois Supreme Court,” Cloud wrote.

Plaintiffs falsely contend that State Farm contributed millions to Karmeier through entities or committees it formed or controlled and they attributed to State Farm more than $4 million out of $4.8 million in contributions that the campaign received, Cloud wrote.

He wrote that in Price v. Philip Morris, a case at the Supreme Court, plaintiffs seeking Karmeier’s recusal attributed the bulk of the same contributions to Philip Morris.

He wrote that the irreconcilable assertions of plaintiffs in the two cases make clear the untenable and concocted nature of the racketeering claim.

Mark Hale, Todd Shadle and Carly Morse filed the suit in 2012, against State Farm, Ed Murnane of Illinois Civil Justice League, and State Farm employee William Shepherd.

Hale, Shadle and Morse belonged to a class that Michael Avery led in a Williamson County class action against State Farm.

Jurors ruled in 1999 that State Farm supplied inferior parts for crash repairs, and associate judge John Speroni awarded damages exceeding $1 billion.

Fifth District appellate judges affirmed the judgment in 2001, and a Supreme Court majority that included Karmeier reversed it in 2005.

Hale, Shadle, and Morse seek to recover the judgment with 15 years of interest and triple the damages, for a total around $7 billion.

Magistrate Judge Stephen Williams plans a hearing on the subpoena on June 17.

Chief District Judge David Herndon presides over the case.

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