The Madison County Record Feb. 5, 2015, 11:16am

EAST ST. LOUIS – U.S. District Judge David Herndon must decide whether lawyers pursuing an $8 billion claim of election fraud against State Farm can depose Illinois Supreme Court Justice Lloyd Karmeier.

Lead plaintiff Mark Hale appealed to Herndon on Jan. 30, to reverse an order from Magistrate Judge Stephen Williams blocking the deposition.

Lead lawyer Robert Clifford of Chicago wrote that Williams misunderstood the case and Hale’s burden of proof.

He disputed Williams’s finding that Hale seeks to impeach decisions of Karmeier and the Supreme Court, yet Clifford called the Court a “tainted tribunal” in court pleadings.

Hale claims State Farm recruited and supported Karmeier in 2004, in order to reverse a $1 billion class judgment for policyholder Michael Avery.

Karmeier joined the court after the Justices had heard arguments in the Avery case but before they had reached a decision.

Avery moved for Karmeier to recuse himself or for other Justices to disqualify him, but neither he nor the Court granted the motion.

The Court reversed the Avery judgment in 2005, with Karmeier in the majority.

Avery petitioned to reopen the case in 2011, and the Justices denied the petition.

Hale sued State Farm in federal court in 2012, on behalf of the Avery class.

He sought triple damages under the Racketeering Influenced and Corrupt Organization law, plus interest.

Hale claimed State Farm led a conspiracy to conceal from the Supreme Court the extent of its involvement in Karmeier’s campaign, in 2005 and 2011.

He also sued State Farm staff lawyer William Shepherd and Ed Murnane of Illinois Civil Justice League, alleging they conspired with State Farm.

Defendants moved to dismiss the suit, and Herndon denied the motion.

They moved for reconsideration, and Herndon denied it.

Defendants petitioned the Seventh Circuit appeals court to stop the proceedings, and the Seventh Circuit denied the petition.

Hale’s lawyers served a deposition notice on Karmeier last November, after Fifth District voters retained him for a second 10-year term.

Williams quashed the deposition on Jan. 16, finding that plaintiffs sought to impeach decisions of Karmeier and the Supreme Court.

Williams wrote that a deposition would invade Karmeier’s deliberative processes.

He allowed 20 interrogatories in writing, within strict limits.

Clifford appealed to Herndon two weeks later, arguing that Karmeier possesses relevant information wholly unrelated to his deliberative duties.

“Justice Karmeier simply could not have begun his judicial deliberations in Avery before he had even joined the court deciding the case,” Clifford wrote.

“And yet this is precisely what Justice Karmeier has argued below.

“Plaintiffs know they cannot ask Justice Karmeier why he ruled the way he did, and they do not intend to do so.

“Despite the magistrate judge’s suggestion to the contrary, this case is not about Justice Karmeier’s decision not to recuse.

“It is true that Justice Karmeier’s hypothetical recusal may have been a potential solution to the taint at the time, but it did not occur.

“Plaintiffs do not seek to impeach any specific decision of the Illinois Supreme Court. Plaintiffs do not intend to probe the recusal issue.”

Clifford wrote that Herndon ruled in his order denying the motion to dismiss the suit that plaintiffs didn’t base the case on any injury by the Supreme Court.

“In other words, the injury – the tainted tribunal and its consequences – was the result of defendants’ fraudulent scheme, not of a judicial decision,” Clifford wrote.

He wrote that plaintiffs don’t need to prove a quid pro quo.

“Plaintiffs need only show that defendants’ fraudulent scheme produced a tainted tribunal, a court with a serious risk of actual bias,” he wrote.

He wrote that plaintiffs don’t need to prove that State Farm lied in briefs it mailed to the Supreme Court.

He wrote that plaintiffs must establish that the defendants engaged in a fraudulent enterprise, and that the briefs furthered the scheme.

“However, the mailings themselves do not have to be fraudulent,” Clifford wrote.

He wrote that interrogatories would deny plaintiffs the opportunity to follow up on questions, observe Karmeier’s demeanor, or evaluate his credibility.

Hale also seeks to overturn an order from Williams quashing depositions of lawyers who evaluated Karmeier for the state bar association in 2004.

Clifford appealed the decision to Herndon on Jan. 26.

“The evidence suggests the judicial evaluation process was compromised for private purposes,” Clifford wrote.

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