James Thompson

Nicholas Byron

Former Gov. James Thompson has petitioned the Illinois Supreme Court to set Madison County Circuit Judge Nicholas Byron straight.

Thompson, on behalf of Philip Morris, moved May 17 for an order that would keep Byron from reopening a class action he dismissed last year.

Thompson wrote, "This Court can and should put a stop once and for all to plaintiffs' futile efforts to resurrect their case ..."

Byron signed an order May 9 certifying questions of jurisdiction to the Fifth District appellate court in Mount Vernon.

"Only this Court, however, has the power to set this circuit court straight," Thompson wrote.

"The Appellate Court has no jurisdiction to provide the circuit court with an advisory opinion in response to the hypothetical questions the circuit court 'certified.'"

Byron dismissed the suit Dec. 18, 13 days after the Supreme Court ordered him to dismiss it. The Court reversed a $10 billion judgment that Byron entered against Philip Morris in 2003.

At trial, Byron had adopted class action arguments of St. Louis attorney Stephen Tillery, to the penny.

Tillery claimed Philip Morris defrauded more than three million smokers by labeling cigarettes as "light" or "reduced tar and nicotine."

Philip Morris petitioned the Illinois Supreme Court for direct appeal, hoping to bypass the Fifth District. The Justices denied direct appeal but three months later they granted it.

In 2005, they reversed Byron by a 4-2 vote. They held that the Federal Trade Commission authorized light labels.

Tillery asked the Justices for rehearing. He did not get it.

He asked the U. S. Supreme Court for a hearing. He did not get it.

Almost a year after the Illinois Supreme Court had reversed Byron, the Justices sent him a mandate to dismiss.

Byron obeyed.

In January, Tillery moved to vacate or set aside the judgment. He claimed he discovered new evidence.

He wrote that in a pending case at the U. S. Supreme Court, the Solicitor General argued that the Federal Trade Commission did not authorize light labels.

At a hearing May 2, Tillery told Byron that on June 25 the U. S. Supreme Court would render a decision adopting the Solicitor General's position.

He said the Illinois Supreme Court would see its error and correct it.

Philip Morris attorneys argued that Byron had no jurisdiction to reopen the case.

Byron said he hadn't reopened it. He said he would certify questions to the Fifth District.

Byron let Tillery write the questions. A week later, Byron certified them.

Eight days after that, Big Jim Thompson stepped in.

He wrote that the Supreme Court "... does not permit a litigant who has lost after exhausting all appeals to start the litigation all over again.

"The circuit court has threatened to plunge PM USA once again into lengthy and expensive litigation, which can result in only one conclusion: that the dismissal of plaintiffs' claims ordered by this Court must stand.

"It is this Court's own mandate that is under attack."

He wrote that the motion to vacate judgment "proceeds on an assumption that the appellate process is never ending and that the notion of 'finality' is non existent."

He wrote that the Solicitor General's position was not relevant.

He wrote that plaintiffs raised the issue of authorization and lost.

He wrote that an assumption that the Solicitor General speaks for the Federal Trade Commission was simply wrong.

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