CHICAGO – Attorney Stephen Tillery of St. Louis, seeking to ban weed killer atrazine and force its producers to build water treatment plants throughout the Midwest, could also end up destroying a research institute that favors free enterprise.
Tillery has demanded that Heartland Institute president Joseph Bast reveal the names of contributors, an action Bast claims would cost the institute most of its support.
The Heartland Institute's mission is to discover, develop, and promote free-market solutions to social and economic problems, according to its website.
According to Bast, Heartland stopped publishing donor names in 2004, due to demonization of supporters.
Tillery claims he needs names for a class action he proposes to pursue against Syngenta Crop Protection, on behalf of cities and other water suppliers.
He reaches for the list with two hands, seeking disclosure in the Illinois Supreme Court and at U.S. district court in Chicago.
In Springfield, the Justices will take it up in a term starting May 9.
In Chicago, U. S. District Judge Samuel Der-Yeghiayan hasn't set a hearing on a motion to quash a subpoena the court issued on March 14.
Tillery sued Syngenta and four other atrazine companies in Madison County in 2004, proposing class actions on behalf of Holiday Shores Sanitary District.
The suits languished for years, and suddenly captured the courthouse spotlight in 2009.
Tillery rounded up private water suppliers and city councils to join Holiday Shores as
plaintiffs, seeking recovery for past and future costs of atrazine removal.
He sought an order finding atrazine unsafe at any concentration.
The U.S. Environmental Protection Agency finds it safe below three parts per billion.
Last year, Tillery's clients sued Syngenta Crop Protection and Swiss holding company Syngenta AG at federal court in Benton.
Syngenta AG contested the jurisdiction of an American court, and District Judge Phil Gilbert ruled that Tillery could conduct discovery on jurisdiction.
Last summer, while that dispute unfolded in Benton, Tillery asked Madison County Circuit Judge Barbara Crowder for a list of Heartland donors.
He also sought all Heartland documents on atrazine, Syngenta, the Triazine Network, Kansas Corn Growers, Kansas Grain Sorghum Producers, and Crop Life America.
Bast, who started the institute in 1984, moved to quash the subpoena as a violation of First Amendment rights.
"I personally have known our donors for many years," he swore in an affidavit.
"I therefore can say without equivocation that Heartland would lose at least half of its
current funding if Heartland is required to disclose donor identities," he wrote.
"Heartland's very survival is thus placed at risk by the subpoena in this case," he wrote.
He wrote that prior to 2004, his website identified corporate and foundation donors, without amounts.
"As a result of this disclosure, among other things, Heartland was demonized by critics and some journalists by selective identification of our most unpopular donors and linkage of them to some of our most controversial work," he wrote.
"This demonization occurs even if a particular donor's contribution was unrestricted, thus funding Heartland's activities overall, not any one activity in particular," he wrote.
Crowder ordered him to produce the list, ruling that a showing of relevance overcomes First Amendment rights.
Heartland petitioned the Fifth District in Mount Vernon for leave to appeal, and the Fifth District denied it in January.
In February, Heartland petitioned the Supreme Court for leave to appeal.
On March 14, Tillery served Heartland with a subpoena from federal court in Chicago for the proceedings in the court at Benton.
On March 24, in Benton, Bast moved to quash the subpoena.
On March 31, Magistrate Judge Philip Frazier denied the motion without prejudice to Bast's right to seek relief in Chicago.
Next day, in Chicago, Bast filed a motion to quash as a new civil action.
"This court should quash the subpoena herein because it is the subject of a far more advanced petition to the Illinois Supreme Court," wrote his lawyer, Maureen Martin of Green Lake, Wisc.
"The conclusion is inescapable that plaintiffs' purpose is to harass Heartland and Bast, causing them to divert financial and temporal resources from Heartland's primary mission, and causing them to incur attorney's fees and other costs," Martin wrote.
On April 8, Syngenta Crop Protection joined the motion.
"The third party subpoena served on Heartland and Bast seeks documents and information in which Syngenta Crop Protection has a proprietary interest," wrote Philip Sholtz of Clayton, Mo.
He wrote that the subpoena related to contributions to third parties, lobbying by third parties, and communications with trade associations.