At a Dec. 16 hearing at federal court in East St. Louis, lawyers seeking to depose Illinois Supreme Court Justice Lloyd Karmeier in an $8 billion suit against State Farm denied they accused the insurer of bribing Karmeier.
They also admitted that they can’t prove a “quid pro quo” agreement between State Farm and Karmeier.
Their retreat began when U.S. Magistrate Judge Stephen Williams called their last brief inflammatory and told Tennessee lawyer Gordon Ball to “tamp down the rhetoric.”
“I don’t write all the briefs in this case,” Ball said.
Karmeier counsel Courtney Cox of St. Louis said he still didn’t understand their position.
"I see constantly shifting sands, what they are saying and what they are not saying,” Cox said.
Lead plaintiff Mark Hale sued State Farm in 2012, along with Ed Murnane of Illinois Civil Justice League and State Farm employee William Shepherd.
Hale claimed they fraudulently secured Karmeier’s election in 2004, in order to overturn a $1 billion judgment that class representative Michael Avery won in Williamson County in 1999.
Hale seeks triple damages under racketeering law, plus interest.
Earlier this year the leader of Hale’s legal team, Robert Clifford of Chicago, told Williams he intended to depose Karmeier after Nov. 4, when Karmeier would stand for retention.
In October, Clifford and other class action lawyers spent $2 million on television and radio spots that accused Karmeier of selling justice.
Voters retained Karmeier, and three days later Hale served notice of intent to depose him.
Cox moved to quash the notice on Nov. 24, writing that the U.S. Supreme Court allows examination of a judge only with a strong showing of bad faith or improper behavior.
Hale’s lawyers responded on Dec. 5, in a brief that sounded like one of their attack ads.
They wrote that an agreement between State Farm and Karmeier could be inferred.
They wrote that Karmeier’s participation in Avery tainted the entire proceeding.
“Plaintiffs allege that defendants, by controlling, orchestrating, and financing Justice Karmeier’s election campaign, and by not disclosing those facts to the Avery class or to the Illinois Supreme Court while Avery was pending, engaged in fraud, resulting in damages," they wrote.
“Once a plaintiff presents evidence that he suffered the sort of injury that would be the expected consequence of the defendant’s wrongful conduct, he has proven his right to trial on the merits.
“The expected consequence of secretly controlling, orchestrating, and financing a Supreme Court justice’s election campaign is that you will get a favorable vote when you need it. That is what happened here.”
The brief carried electronic signatures of Clifford and Ball.
At the hearing on Dec. 16, Cox asked Williams if the time is right for a deposition.
He said plaintiffs can obtain information from other sources.
He said that if the time is right for a deposition, the question is how to go about it.
“Our concern is the border between what they can and can’t ask. When we get to that border line you get some pretty gray places,” Williams said. “If we have a deposition, the boundaries will have to be defined. There’s no doubt about that.”
Cox said plaintiffs accused Karmeier of taking a bribe.
“I have never tread these waters before, nor have any of us,” Cox said.
Clifford offered to explain his theory.
Williams said, “It might be worth doing.”
Clifford said he took exception to Cox’s reference to bribery.
“That’s offensive," Clifford said. "No one has ever said that. That is not what the complaint alleges.”
He said Karmeier did not represent that a deposition would interfere with his activity in office.
He answered Cox’s proposal to seek information from other sources by asking, “Would they be saying that if he was a witness to an explosion, a car crash?”
Williams said he took a little exception to claims in the plaintiff’s brief.
“To say they are not inflammatory – I don’t see how else you can say it,” Williams said.
Ball said defendants perpetrated a scheme to defraud plaintiffs of their property.
He said they selected a candidate and placed him while Avery was pending.
He said they kept Karmeier on the bench without anyone knowing the real support he received, so that he could participate in the decision.
Ball quoted a U.S. Supreme Court decision, Caperton v. Massey Coal, overturning a West Virginia Supreme Court decision that involved a campaign contributor.
He said there was no allegation of quid pro quo in Caperton.
“We can’t say quid pro quo. We may never be able to show it. Quite frankly, that’s why he wasn’t sued,” Ball said.
“To say that he got a direct bribe, we aren’t saying that.
“This case is ten times, maybe a hundred times, more egregious than Caperton.”
Williams said, “You have stated you can prove an agreement by circumstantial evidence. That’s what I have heard in the past.”
Ball said they can prove Murnane and State Farm chief executive Ed Rust participated.
“Can we prove Justice Karmeier was in on the scheme?" Ball asked. "No.”
For State Farm, Joseph Cancila of Chicago said Caperton was a due process claim and not a racketeering claim.
Cox read aloud the sentence about expected consequences in the Dec. 5 brief.
“That is what I was referring to,” he said.
Cox said plaintiffs haven’t proved that any money went from State Farm to Karmeier.
“Until then, why depose a Supreme Court Justice on matters that may not be important?” Cox said.
That would have ended the event, but Cancila stood and lifted a hand.
Reading from his palm, he said that in the original responses of plaintiffs to interrogatories, they alleged “purchasing the vote of an Illinois Supreme Court Justice.”
Williams adjourned the hearing.