Fifth District passes Tillery's tobacco case to Illinois Supreme Court

Steve Korris Jun. 7, 2007, 9:00am

James Thompson

When Madison County Circuit Judge Nicholas Byron certified questions to the Fifth District Appellate Court about reopening a class action against Philip Morris, he might as well have certified his questions directly to the Illinois Supreme Court.

In a June 1 order the Fifth District stayed proceedings on the questions of "related matters pending in the Illinois Supreme Court."

Plaintiff's attorney Stephen Tillery of St. Louis notified the Fifth District on May 25 that he planned to submit Byron's questions to the Supreme Court in response to a Philip Morris petition.

Byron dismissed the suit in December in obedience to a mandate of the Supreme Court. He had entered judgment in excess of $10 billion against Philip Morris in 2003.

Byron found that Philip Morris defrauded smokers by advertising "light" and "lower tar" brands.

He awarded billions in actual damages, billions in interest and billions in punitive damages.

Philip Morris appealed directly to the Supreme Court. In 2005 the Supreme Court reversed Byron, four justices to two.

The majority held that federal law preempted the fraud claims because the Federal Trade Commission (FTC) had authorized light and low tar labels. Tillery asked for rehearing, but did not get it.

Tillery asked the U.S. Supreme Court for a hearing. He did not get that either.

That left Byron no choice but to dismiss.

In January, Tillery moved to vacate the order dismissing his suit.

At a hearing May 9, Tillery told Byron the U.S. Solicitor General filed a brief in another case declaring that the FTC never authorized light labels.

Tillery told Byron the U.S. Supreme Court would issue a decision adopting the Solicitor General's argument.

He told Byron the Illinois Supreme Court would see its error and change its decision.

Byron said he would certify questions to the Fifth District on his jurisdiction. He told Tillery to write the questions. On May 9 Byron certified three:

  • May a circuit court vacate or set aside a judgment, which the Illinois Supreme Court directed the court to enter, within 30 days of its entry based on the discovery of new evidence which was unavailable before the judgment was entered if the newly discovered evidence discloses an error of fact upon which the judgment was based?

  • May a circuit court vacate or set aside a judgment, which the Illinois Supreme Court directed the court to enter, if a subsequent United States Supreme Court decision makes plain that the basis for the judgment was erroneous?

  • May a circuit court hear and rule on a motion to return to a party documents filed under seal with the circuit court pursuant to a protective order after the court has entered judgment as directed by the Illinois Supreme Court?

    On May 17 former Governor Jim Thompson asked the Illinois Supreme Court to intervene. He wrote that the Illinois Supreme Court should set the circuit court straight.

    On May 25, Tillery associate Donald Flack asked the Fifth District to defer action on Byron's questions.

    He wrote that he would ask the Illinois Supreme Court the questions.

    Flack wrote, "…the basis for the Illinois Supreme Court's reversal was erroneous."

    He wrote that there was a difference of opinion about "whether such extraordinary circumstances justify the very ordinary relief plaintiff's petitioners have sought: the vacation of a judgment reached as the result of manifest judicial error within its entry."

    Flack quoted two sections of Justice Rita Garman's opinion and added, "As we now know, all of that is plainly wrong."

    "…[A] trial court is not bound by a reviewing court's ruling on a point of law if a subsequent ruling by a higher court changes the law."

    He wrote that there was no merit to the argument of Philip Morris that Byron lacked jurisdiction.

    "…[T]he Supreme Court's issuance of its mandate once again vested jurisdiction in the circuit court," Flack wrote.

    He wrote that Philip Morris "recognizes that only a tortured interpretation of the statute would preclude a circuit court from entertaining motions to vacate a judgment strictly because the judgment was entered pursuant to the mandate of a higher court."

    On May 30 Philip Morris attorney Larry Hepler filed an unopposed motion to stay the Fifth District proceedings.

    The Fifth District granted the motion.

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