Republican Representative Charlie Norwood (pictured, center) has represented northeast Georgia since 1995.
Here is the full text of Norwood's letter to Ashcroft.
Dear Attorney General Ashcroft:
I am writing to bring your attention to disturbing reports I have received that the Madison County Circuit Court in Illinois regularly applies the civil laws in an unfair manner and violates the fundamental constitutional rights of defendants, particularly those that hail from other states, including my own. I urge your office to investigate these practices with the goal of ensuring that civil justice in Madison County is meted out in a manner that is fair and consistent with the protections contained in the U.S. Constitution.
The dramatic tilt of justice in Madison County, a small rural county across the Mississippi River from St. Louis, has attracted nationwide attention. For example, the American Tort Reform Association has called Madison County America’s number one “judicial hellhole.” The U.S. Chamber of Commerce recently ranked Illinois forty-fourth in a survey on the legal environments in the fifty states, largely due to the litigation abuses in Madison County.
During July 2004 floor debate on a class action reform bill, U.S. Senator Orrin Hatch said this about Madison County: “If it isn't a corrupt jurisdiction it's the closest jurisdiction we can find to it.” Senator Hatch added that defendants know “the judicial deck is stacked against them” in Madison County.
The hostile litigation environment in Madison County can be highlighted in a few examples:
An Indiana plaintiff obtained a $250 million verdict against U.S. Steel —believed to be one of the largest verdicts ever awarded to a single plaintiff—for injuries allegedly stemming from decades of asbestos exposure at a U.S. Steel facility in Indiana. The plaintiff had no significant connection to Illinois, much less to Madison County. (In 2000, another asbestos plaintiff was awarded $34.1 million against Shell Oil. At the time, this award was the largest asbestos verdict in Illinois history, until it was dwarfed by the 2003 U.S. Steel verdict.) The Madison County Circuit Court awarded $10.1 billion to a class of “light” cigarette smokers. The Illinois Supreme Court has decided to hear defendant Philip Morris USA’s appeal without need for intermediate appellate court review. A retired welder received a million-dollar verdict after he claimed that fumes he inhaled from welding at his job in Missouri caused him to develop Parkinson's disease. I understand this was the first such claim to result in a plaintiff verdict. Madison County residents’ access to affordable health care is being adversely affected. Large numbers of doctors reportedly are leaving Madison County as a result of the skyrocketing costs of obtaining medical malpractice insurance, leaving at least one local hospital unable to accommodate the number of baby deliveries in previous years.
These are extreme cases, but I am told they are not aberrant. Rather, the examples appear to be representative of a local court system that is heavily biased against civil defendants. Below I will outline some specifics regarding constitutional violations in Madison County that have been brought to my attention.
I. First Amendment Violations
The Madison County Circuit Court, and lawyers acting under the court’s authority, have violated or chilled the exercise of First Amendment rights held by members of the media, civil defendants, and advocates for reform.
At an April 2004 public forum hosted by Washington University Law School in St. Louis, former United States Attorney General and former U.S. Court of Appeals Judge Griffin Bell said that counties like Madison County that are known for treating civil defendants unfairly bring a “stain on our system.” Judge Bell suggested the need for a federal investigation into the administration of civil justice in Madison County. The next day, a Madison County judge retaliated by barring Judge Bell and his firm from appearing in the courtroom. Not long after that incident, the St. Louis Post-Dispatch reported that a Madison County judge closed his courtroom to reporters seeking to cover a hearing about a fee dispute between prominent local plaintiffs’ lawyers. Speculation was that the hearing would include arguments over the attorneys’ share of fees stemming from a large class action settlement and would include statements regarding the sizable sums the attorneys stood to gain from that action and others. The judge also refused public access to the transcript and exhibits from the hearing.
· In one effort to chill defendants from exercising their First Amendment rights, a plaintiffs’ law firm issued discovery requests in June 2004 seeking defendants to disclose their associations with and support of tort reform organizations. At least one defendant has filed a motion for protective order with the court because “the sought-after information is not relevant to th[e] litigation” and the inquiries “infringe on well-established First Amendment rights of free speech and association.” The Wall Street Journal editorialized that the plaintiff firm’s requests have no legal merit; their purpose is purely coercive: “One’s right to support tort reform or the organizations fighting for it is not a crime in America (not yet at least). But using the courts to ask about that support does have a useful intimidation effect.”
· In June 2003, another plaintiffs’ law firm issued subpoenas against the presidents of several major tort reform associations when they appeared at a press conference to exercise their constitutional right to speak out against litigation abuse in Madison County and to proffer solutions to improve the county’s civil justice system. The subpoenas demanded that two of the individuals travel halfway across the country a month later to appear for a deposition in a product liability case. These individuals were previously unaware of that action, and information sought by the subpoenas, such as the groups’ membership and financial records, had absolutely no relevance to the case. The clear purpose of the subpoenas was to harass and intimidate. The subpoenas were eventually withdrawn, but not before costing the organizations tens of thousands of dollars in legal fees and sending an unmistakable message that reform advocates should avoid Madison County if they want to speak freely.
These blatant First Amendment violations are clear evidence of the environment of intimidation and retribution that exists for individuals and groups that want to exercise their rights to promote fair justice in Madison County. The message has been heard loud and clear. An informal survey of local defense lawyers yielded no attorney willing to publicly criticize or speak out about the state of affairs in the county for fear of further damaging their chances in an already biased court.
II. Due Process
The Madison County Circuit Court has made a routine practice of violating defendants’ due process rights. Defendants are unfairly handicapped by many of the court’s rulings and procedures, and in many cases are denied the basic protections that are in place to ensure that defendants have an opportunity to defend themselves in court.
· In its day to day rulings, the court regularly denies defendants’ motions to dismiss or for summary judgment without proper judicial inquiry.
· For example, over a surveyed seven-year period, the court did not grant a single defendant’s motion to dismiss in an asbestos case where the plaintiff failed to allege basic facts regarding the product he or she was exposed to or the location and time of such exposure.
· Another survey of over 400 motions for summary judgment filed in Madison County asbestos cases from approximately January through June 2002 found that plaintiffs did not bother filing written responses to any of those motions. Only two motions were granted, and one of those involved a pro se plaintiff who failed to attend the hearing.
· Defendants are forced to defend themselves without adequate time to prepare – trial by ambush is the norm. For instance, the routine practice in asbestos claims is for defendants to find out which cases will be going to trial on the morning of the day they are scheduled to go. As many as twenty trials may be set for the same day.
· At trial in some product liability cases, defendants have been prohibited from introducing evidence that the plaintiff’s injury was the result of another company’s product, that exposure to a product occurred while the plaintiff was working at a different company, or even evidence that an alleged injury was caused by some other exposure.
· Additionally, when the Madison County judge banned Judge Bell’s law firm from appearing in his court, the judge effectively denied future defendants’ access to counsel and adequate representation. As the St. Louis Post-Dispatch editorialized: “So much for a defendant’s right to choose his own counsel.”
Judges take an oath to support and defend the Constitution, but that oath appears to be meaningless in Madison County. Rather than protect the due process rights of all litigants, the Madison County Circuit Court appears to actively deny civil defendants basic legal protections.
III. Interstate Commerce
Madison County is well known for its propensity to certify nationwide class actions. According to the Manhattan Institute’s Center for Legal Policy, more class actions were filed in Madison County between 1998 and 2000 than any other county in the United States except for Los Angeles County and Cook County (Chicago), Illinois, both of which have substantially larger populations. Between 1998 and 2000, the county experienced a 3650% increase in the number of class action filings. The New York Times has said that the Madison County judges have “never met a class-action lawsuit they did not like.” The Chicago Tribune has written that “Madison County judges frequently decided to hear cases that other courts have refused to hear.”
By certifying nationwide class actions, Madison County courts are exporting their views to other jurisdictions with vastly different rules and controlling the conduct of citizens and businesses in other states, including residents of my district.
For example, the Illinois Supreme Court is now considering an appeal of a putative nationwide class action filed in Madison County against an automobile insurer. The class representative and only named plaintiff lives in Louisiana, the evidence and witnesses are in Louisiana, and the defendant has its corporate offices in a different Illinois county. A Madison County judge allegedly certified the case based on class counsel’s assertion that the defendant’s conduct was national in scope and thus potentially involved at least some Madison County residents. The Madison County Circuit Court certified a nationwide class action filed on behalf of potentially tens of thousands of current and former property owners. The class claims alleged that Sprint installed over 18,000 miles of fiber optic running through class members’ property without seeking permission from the property owners. The case was certified after Judge Posner, writing for the U.S. Seventh Circuit Court of Appeals, rejected class certification in an earlier-filed federal action. Judge Posner found that the “case involve[d] different conveyances by and to different parties made at different times over a period of more than a century . . . in 48 different states . . . which have different laws regarding the scope of easements . . . making it unlikely that common issues predominate over individual-claim issues.” He called the case a “nightmare of a class action” and stated that class action treatment would be “decidedly inappropriate” given the numerous individual factual and legal questions at issue.
· The Harvard Journal of Law & Public Policy has documented other class action abuses in Madison County. See John H. Beisner & Jessica Davidson Miller, They’re Making a Federal Case Out of It . . . In State Court, 25 Harv. J.L. & Pub. Pol’y 143 (2001).
The majority of the people involved in class actions filed in Madison County are not residents of that county. The Madison County Circuit Court is in effect denying other states’ citizens the right to seek justice at home and forcing them to submit to a foreign jurisdiction’s laws, rulings, and outcomes. The circuit court also seems to subject out-of-state defendants to treatment that is particularly unfair. These practices appear to violate the Commerce Clause of the U.S. Constitution.
IV. A Possible Explanation for These Abuses
In October 2002, Illinois Lawsuit Abuse Watch (I-LAW) and the Illinois Civil Justice League (ICJL) released a study that showed that a small number of plaintiffs’ lawyers and their firms were contributing vast sums of money to support judges who would regularly preside over the lawyers’ cases. The title of the report begged the question, “Is Justice For Sale?”
Between 1980 and 2002, 90% of the contributions made to Madison County judicial candidates came from plaintiffs’ lawyers. Judges have received tens of thousands of dollars in contributions even in years when they have run unopposed. For example, one judge who ran unopposed in 2002 pulled in $68,550.00 in campaign contributions. A St. Louis Post-Dispatch article described the details of an exclusive fundraising event for the judge at the home of a local plaintiffs’ lawyer: “Among the guests were lawyers for a firm the routinely argues multimillion-dollar asbestos suits in [the judge’s] court…..” Several plaintiffs’ firms with no Madison County office have contributed money to Madison County judicial campaigns. For example, one Dallas-based firm made several contributions to one judge’s campaign in 2002, just months after the firm reportedly received a $16 million settlement in the county. A Chicago-based firm that contributed to the judge’s campaign claimed to have achieved the “largest personal-injury settlement in the history of the State of Illinois in 1999.”
A July 2004 joint report by I-LAW and ICJL notes that in the two year period since the “Justice For Sale” report was issued, the trends that were documented in that report are “continuing, but on an even larger scale.”
The amount of funds received by Madison County judges should raise significant concern in light of who is writing the checks, who is receiving the checks, and who is receiving the huge fees as a result of some of the outrageous verdicts and settlements taking place in Madison County. While the answer may not be this simple, the evidence seems to indicate that the plaintiffs’ attorneys practicing in Madison County are largely financing the county’s judiciary, and from all accounts it appears they are on the receiving end of preferential treatment as a result. The Justice Department should investigate whether there is a connection to be drawn between the lawyers’ giving and the rulings being issued in the Madison County Circuit Court.
The reports of constitutional violations and litigation abuses in Madison County are cause for serious concern. Our civil justice system depends on the ability of our courts to be fair to all parties. Litigants must be able to go to court believing they will win or lose on the merits of the case or controversy to be decided, not based on whether they contributed to the judge’s last election campaign. I believe all Americans share this bedrock view.
I urge the Department of Justice to investigate the administration of justice in Madison County and the propriety of many of the activities allegedly taking place in the Madison County Circuit Court. The Justice Department should find out if there is a pattern of practice of denying civil defendants’ fundamental constitutional rights. If such a pattern of practice exists, the Justice Department should seek an appropriate remedy.
Thank you for your attention to this matter.
Member of Congress
Norwood's office was not immediately available for comment.
Norwood, 63, announced on September 7 that he is expecting to soon undergo a single lung transplant as he has been diagnosed with idiopathic pulmonary fibrosis, a lung disease that restricts one's ability to breathe.
The Republican dentist faces a challenge from Democrat Bob Ellis for relection this November but expects to win easily. Norwood won 73% of the vote in 2002.