The Madison County Record Jul. 8, 2014, 7:41am

Absence of evidence that cigarette maker Philip Morris bankrolled Lloyd Karmeier’s campaign for the Supreme Court in 2004 should count as proof that it happened, St. Louis lawyer Stephen Tillery argues.

He advanced the theory on June 19, for his claim that Justice Karmeier must recuse himself from reviewing a $10 billion judgment against Philip Morris.

“Litigants are never likely to discover the undisclosed campaign contributions of their adversaries, and those who make such contributions are not likely to disclose them voluntarily,” Tillery wrote.

“Any litigation advantage to be had from making such contributions would be forfeited by disclosing them.”

He wrote that to suggest Philip Morris remained aloof from Illinois politics with a multi billion dollar judgment hanging over it is not credible.

“Indeed, the evidence that Philip Morris made no reportable contributions in Illinois during the 2004 cycle is itself good reason to believe that Philip Morris probably made contributions it was not required to report,” he wrote.

Tillery conceded that Philip Morris owes no obligation to produce internal records, yet claimed its failure to produce them should count as evidence against it.

“Philip Morris’s failure to produce that direct evidence speaks volumes because the undisclosed evidence necessarily corroborates plaintiffs’ claims or Philip Morris’s claims, and there is no reason to think Philip Morris would withhold that evidence if it proved Philip Morris’s claims that it did not make contributions to the Karmeier campaign,” Tillery wrote.

“Philip Morris may have no obligation to open up these records, but its decision not to do so under the circumstances speaks for itself.

“That silence in the face of the circumstantial record is further substantiation that Philip Morris’s technical denials are misleading and deliberately so.”

Tillery’s new theory alleges criminal conduct, according to a reply that Philip Morris counsel Michel Odorizzi of Chicago filed on June 27.

She wrote that it would have been illegal to contribute to an organization with the direction to pass the funds to Karmeier’s campaign without disclosure.

“Plaintiffs offer no legal or factual basis for presuming that Philip Morris violated campaign disclosure laws in 2004 and forcing Philip Morris, almost a decade after the fact, to prove a negative in order to overcome the presumption,” Odorizzi wrote.
Tillery won the judgment in 2003, when former Madison County circuit judge Nicholas Byron ruled that Philip Morris deceived buyers of cigarettes with light and low tar labels.

Fifth District appellate judges affirmed Byron, and Philip Morris appealed to the Illinois Supreme Court.

Karmeier won election while the case awaited decision, and he joined a majority that reversed Byron in 2005.

The majority held that federal law trumped Illinois consumer fraud law because the Federal Trade Commission authorized light and low tar labels.

Byron obeyed their mandate to dismiss the case, but later reopened it by certifying the question of his jurisdiction to the Fifth District.

When Fifth District judges told him he could proceed, Philip Morris petitioned the Supreme Court for a supervisory order.

In 2007, the Supreme Court entered a supervisory order shutting down the action.

Tillery opened it again in 2011, citing new evidence in the form of a Federal Trade Commission statement that it never authorized light and low tar labels.

Madison County circuit judge Dennis Ruth rejected Tillery’s bid, but Fifth District judges reversed Ruth this year and reinstated Byron’s judgment.

In May, Philip Morris petitioned the Supreme Court for a supervisory order or leave to appeal.

Tillery, on behalf of class representatives Sharon Price and Michael Fruth, moved for Karmeier to recuse himself or for the other Justices to disqualify him.

Tillery cited a U.S. Supreme Court decision from 2009, Caperton v. A. T. Massey Coal, holding that elected judges must recuse themselves from cases involving litigants who gave a disproportionate amount of financial support to their campaigns.

Odorizzi replied that Caperton didn’t apply, and filed an affidavit declaring Philip Morris reported no contributions to the campaign.

On June 19, when Tillery filed his brief on recusal, he moved to strike the affidavit.

Tillery wrote that the public perceives bias regardless of the fact or the amount of contributions by Philip Morris or its affiliates.

He wrote that Philip Morris didn’t explain why it used outside counsel rather than someone at the company to deny contributions to the campaign.

“Moreover, noticeably absent from even the Odorizzi affidavit is any denial that Philip Morris funneled money intended for Justice Karmeier’s campaign through the U.S. Chamber of Commerce or the American Tort Reform Association,” Tillery wrote.

“This failure could be read as an admission.”

Odorizzi proceeded to the facts of the case in a June 25 brief on a supervisory order.

She wrote that an agency can’t disprove a court’s interpretation of agency actions by later taking a position on what those actions should mean.

“Plaintiffs do not dispute that during the Price litigation, the FTC had no formal position on whether companies could use ‘lights’ descriptors,” she wrote.

She wrote that in 2008, when the commissioners took the position, none of them had served during the Price trial.

She wrote that agencies are forbidden from retrospective policy making.

“Nor do plaintiffs dispute the dangers of allowing parties to upend this state’s judgments based on shifting agency opinions,” she wrote.

Odorizzi defended her affidavit on June 27, writing that plaintiffs didn’t contend that she misquoted any documents or misstated their contents.

In her brief on Karmeier’s recusal, on the same date, she wrote that Tillery’s new theory was worthy of Alice in Wonderland.

“Caperton provides no support for presuming that an organization’s contributions are attributable to all of its members,” she wrote.

“Campaign disclosure laws draw the lines they do for a reason.”

Odorizzi wrote that if a person contributes to an organization with the direction to pass it to a campaign, he makes a political contribution and disclosure is required. Any other rule would allow straw donors to frustrate disclosure.

She wrote that if a person contributes to the Chamber of Commerce without direction, the Chamber has the right to decide how to use the contribution.

She wrote that contributions of Chamber members are not political and can’t be deemed contributions to any particular candidate. And, as a legal and practical matter, the only contributions that can be considered in a recusal motion are those reportable under campaign disclosure laws.

(The Record is owned by the U.S. Chamber Institute for Legal Reform). 

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