MADISON - ST. CLAIR RECORD

Illinois Supreme Court Justice Lloyd Karmeier took a rare step last week when he rejected a request to recuse himself from the court’s review of the long running legal battle over “light” cigarette labeling — he explained why.

In a 16-page order filed Wednesday, the same day the court announced it would again hear arguments in Sharon Price v. Philip Morris, Karmeier discussed the reasoning behind his refusal and addressed the plaintiffs’ allegations he voted to overturn the $10.1 billion verdict against the tobacco company in 2005, the year after it funneled donations to his campaign for the high court.

Pointing out the rarity of the situation, both the motion seeking his recusal and his decision to comment on his denial in a rather public and official way, Karmeier made it clear he is not bowing out of the court’s upcoming review because he believes the plaintiffs failed to provide any evidence to back up their claims.

On behalf of the plaintiffs, St. Louis attorney Stephen Tillery in May asked Karmeier to recuse himself or for the court to disqualify him from participating in the case after Philip Morris appealed the Fifth District Appellate Court’s recent ruling.

The appeals panel in April reversed Madison County Circuit Judge Dennis Ruth’s December 2013 refusal to reopen to the case and effectively reinstated the 2003 bench verdict. The plaintiffs accused Philip Morris of deceptively promoting health benefits of “light” and “lowered tar and nicotine” cigarettes in violation of consumer fraud laws.

“In reality, the notion that movant (Philip Morris) was responsible for financing my run for office ten years ago is just that, a notion,” Karmeier wrote. “It is based entirely on conjecture, innuendo and speculation which, once started, took on a life of its own for a while in the press.”

Despite being presented with “voluminous materials” showing Philip Morris didn’t financially support his campaign, Karmeier claims Tillery has been “reduced to arguing that” the company’s lack of reportable contributions during the 2004 election cycle is a “good reason to believe that” it probably made undisclosed donations to him.

“In other words,” the justice wrote, “respondents appear to be suggesting that the lack of direct evidence to support their position actually substantiates that what they are claiming is true. This view is, of course, untenable; if no proof qualified as proof, our adversarial system would truly have stepped through the looking glass.”

Rejecting the recusal request

Tillery, who filed the class action suit in 2000 in Madison County, pushed for Karmeier’s recusal based on a number of factors he argued created “an objective and reasonable public perception” of bias in favor of Philip Morris.

Among the factors the plaintiffs cited were alleged campaign donations Philip Morris made to Karmeier through political action committees; media attention about the contributions, as well their alleged implications on judicial impartiality; and his decision to vote to overturn the verdict.

Tillery has dubbed Karmeier’s vote in the case as the “the deciding vote that saved Philip Morris billions of dollars,” but last week’s order notes it was just one of four that made up the majority.

Saying that the legal battle over Philip Morris’ cigarette labeling began four years before he was elected, Karmeier pointed out the plaintiffs’ recent recusal request marked the first time anyone has “questioned the propriety of my participation.”

“Not surprisingly,” he adds, “the development has drawn a strenuous and detailed objection from Philip Morris which contends, among other things, that respondents’ motion ‘is a cynical, dishonest, and hopelessly untimely effort to remove one of only two Justices on the Court who voted against plaintiffs in December of 2005’ in the underlying case.”

Describing the tobacco company’s criticism as “understandable,” Karmeier said the plaintiffs’ request never made a claim of actual bias against him and only offered the contention that the circumstances surrounding his 2004 election might put his impartiality into question.

“Those circumstances, however, are not new,” the justice wrote in his Wednesday order. “The information cited by respondents was known or could have been ascertained by them long ago. The request for my recusal is therefore untimely, and respondents’ claims regarding the appearance of impropriety have been forfeited.”

And even if those claims were timely, Karmeier asserts, the plaintiffs’ arguments would still fail on the merits because “[r]egardless of their personal backgrounds and experiences in life, judges are assumed by the law to be impartial and capable of considering each case in light of the evidence presented.”

Responding to campaign donation claims


In regards to the plaintiffs’ allegation the cigarette maker “was responsible for ‘bankrolling’ my election to this office 10 years ago,” Karmeier said campaign records show his 2004 campaign “received no money whatever from [Philip Morris], its affiliates, or any of its employees.”

While they tried to link Philip Morris to the political action committees of the Illinois Chamber, the Chicagoland Chamber and Illinois Civil Justice League’s JUSTPAC, Karmeier contends the records just don’t support the plaintiffs’ claims.

“According to the materials presented in connection with this matter, neither movant nor any of its affiliates contributed any money to either JUSTPAC or the Chicagoland Chamber PAC in 2003 or 2004,” the order states. “In 2004, Altria Corporate Services, an affiliate of respondent, apparently did contribute $20,000 to the Illinois Chamber PAC.”

Even if Illinois Chamber PAC’s donated the entire $20,000 to his campaign, Karmeier said he wouldn’t have known about it and it would have represented “only 0.4 percent of the total $4.8 million raised in support of my campaign.”

“Moreover,” he wrote, “while campaign records indicate that three of the law firms that represent [Philip Morris] in this ongoing litigation made modest contributions to my campaign prior to my election, those contributions totaled only $16,800—approximately 0.35% of the total raised by the campaign.”

The plaintiffs “do not argue, nor could they argue, that these kinds of modest contributions provide any basis for recusal, even assuming that they could properly be attributed to [Philip Morris],” Karmeier said, noting the Code of Judicial Conduct allows judges to receive donations from lawyers who appear before them.

He further rejected the plaintiffs’ claim his recusal is necessary based on Philip Morris’ association with public interest and political entities.

“The claim that a judge may not hear a case because a party may have some association with a public interest group or political party that did support or may have supported the judge’s candidacy has no basis in the law, would be unworkable and is contrary to the very notion of an elected judiciary,” Karmeier asserts.

Agreeing with an argument raised by Philip Morris, Karmeier said the “system would come to a grinding halt if contributions by organizations and interest groups were sufficient to force a judge to recuse himself or herself in any case in which a member of the group was a party.”

“Adopting a policy of recusal-by-association would logically require my recusal in each and every additional case in which any member of the organizations which supported my candidacy might appear as a litigant.”

Such a policy would make judicial disqualifications routine, rather than rare, Karmeier wrote, adding it would compromise the Supreme Court’s ability to do its work by preventing justices from “hearing a substantial number of cases for the entire duration of the terms they were elected by the voters to serve.”

Calling out Avery, the press

Karmeier said he couldn’t “help but notice” the plaintiffs’ contentions “bear an unmistakable similarity to materials filed by the plaintiffs in Avery v. State Farm … as part of their ultimately unsuccessful effort to disqualify me from participating in that case and to revisit the Court’s original judgment against them.”

The plaintiffs in Price “repeat the same arguments, cite many of the same newspaper articles, and even rely on the very same contributions by the very same organizations as did the lawyers for the Avery plaintiffs,” Karmeier asserts. “The only difference is that respondents here claim that those same contributions should be attributed to [Philip Morris] rather than State Farm.”

“The ‘evidence’ proved inadequate when considered by the Court in Avery,” Karmeier wrote. “In its recycled form, it remains inadequate here.”

Tillery earlier this month filed a brief under seal in a federal racketeering lawsuit stemming from Avery that alleges State Farm conspired to get Karmeier elected so he would vote to overturn a billion dollar judgment against the insurance giant. The RICO suit — Hale v. State Farm — remains pending in southern Illinois’ federal court.

In addition to explaining why he rejected the plaintiffs’ arguments for his recusal, Karmeier used his 16-page order to express his apparent dissatisfaction with previous press coverage about him and the Price case.

“It is unfortunate that press accounts may have sensationalized aspects of this case and the campaign which resulted in my election to this office a decade ago,” he wrote. “Judicial inquiry may not, however, be defined by what appears in the press.”

“If such were the case, those litigants fortunate enough to have easy access to the media could make charges against a judge’s impartiality that would effectively veto the assignment of judges. Judge-shopping would then become an additional and potent tactical weapon in the skilled practitioner’s arsenal.”

Saying that “the appearance of partiality portrayed in the media may be, at times, unreasonable,” Karmeier said that “It is equally so when, as was the case here and in Avery, inaccuracies and mischaracterizations by one source are republished uncritically by others. Repeating a falsehood does not make it the truth.”

Acknowledging assumptions, politics

In rejecting the plaintiffs’ recusal request, Karmeier said the “rule of necessity” amplifies his “duty to sit” and hear the case because there are only six justices available –Justice Robert Thomas hasn’t participated in much of the Price case and will not going forward– and “the concurrence of four justices is required for a decision of this Court.”

The plaintiffs, he wrote, might be assuming the justices will vote the same way they did in 2005, when Karmeier, now-Chief Justice Rita Garman, the late Justice Mary Ann McMorrow and retired Justice Thomas Fitzgerald made up the majority and voted to overturn the multi-billion judgment against Philip Morris. Justices Charles Freeman and Thomas Kilbride dissented from the majority.

“I was one of the judges who voted for the judgment, but specially concurred, relying on a separate theory for why respondents’ claims were fatally defective, a theory which did not depend on the legal analysis being challenged in this latest round of litigation,” Karmeier wrote. “From this, respondents perhaps surmised that I would continue to vote against them now.”

“That leaves three members of the Court unaccounted for. How those three members would view respondents’ claims is something respondents could not have known for sure. What they could be certain of, however, is that three would not be enough to rule against them. Four votes are needed for that and without four, the appellate court’s ruling would remain intact, at least for now.”

While Karmeier asserts he has “not yet formulated an opinion regarding the underlying merits of respondents’ claims, removing me from the case would seem, from respondents’ position, to be a promising strategy indeed for helping to revive the multi-billion dollar judgment they lost when this Court ruled against them eight years ago.”

The potential political consequences for refusing to recuse himself were not lost on Karmeier either, as he mentioned the case is coming before the court as he is running for retention in November.

“My decision today may have an effect on my candidacy,” he wrote in his Wednesday order. “That, however, is an occupational hazard in our system for electing judges. It is not and can never be a valid basis for recusal.”

When he ran for office more than a decade ago in a race that went on to become the nation’s most expensive Supreme Court battle in history, Karmeier said he only made one promise.

“It was a promise to the People of Illinois and the voters of the Fifth Judicial District that if elected, I would decide every case free of outside influence and based solely on the law and the facts,” he wrote in his order. “I have honored that pledge, just as I have always honored it since first assuming judicial office in 1986. This case has not been and will not be an exception.”

In addition to denying the plaintiffs’ motion seeking his recusal, Karmeier said he referred their alternative disqualification request to the full court, even though it is not required. The full court, however, never took action on Karmeier’s referral, which means it is denied.

(Editor’s note: The Record is owned by U.S. Chamber of Commerce Institute for Legal Reform).