Madison - St. Clair Record

Friday, April 10, 2020

Philip Morris rejects Caperton comparison to Price; Defense responds to Tillery in $10.1 billion tobacco case

By The Madison County Record | Dec 16, 2015


SPRINGFIELD – Lawyers who claim a U.S. Supreme Court decision disqualifies Illinois Supreme Court Justice Lloyd Karmeier from a case involving Philip Morris miss their mark, according to Philip Morris.

“The situation here is light years away from Caperton,” Michelle Odorizzi of Chicago wrote on Dec. 11, referring to Caperton v. Massey Coal, a case arising in West Virginia.

She opposed a disqualification motion that plaintiff Sharon Price filed when she petitioned the Illinois Supreme Court to recall a mandate it issued in 2006.

The mandate reversed a $10 billion consumer fraud judgment that former Madison County judge Nicholas Byron entered in 2003.

Byron, after holding trial without a jury, found Philip Morris deceived smokers into expecting health benefits from light and low tar brands.

In 2004, while the case awaited decision at the Supreme Court, Fifth District voters elected Lloyd Karmeier to the Court.

The Court reversed Byron in 2005, with Karmeier in the majority.

The Court ruled that federal law preempted state consumer law because the Federal Trade Commission authorized light and low tar labels.

That didn’t close the case, for lead lawyer Stephen Tillery reopened it in Madison County in 2008.

Tillery claimed the trade commission declared in separate litigation that it did not authorize the labels.

He counted another point in his favor in 2009, when the U.S. Supreme Court disqualified West Virginia Justice Brent Benjamin from the Caperton case.

The Court found that a reasonable person would perceive bias in Benjamin because Massey Coal owner Don Blankenship had contributed to his campaign.

For five years Tillery cited Caperton as he sustained his suit in Madison County court and the Fifth District appellate court in Mount Vernon.

The Fifth District reinstated the judgment last year, finding the Supreme Court would have affirmed it if the Justices had known the trade commission’s position.

When Philip Morris appealed, Tillery moved to recuse or disqualify Karmeier.

He alleged that Philip Morris indirectly supported Karmeier’s campaign in 2004.

Karmeier polled the other Justices on disqualification, and none voted for it.

He then rejected recusal, finding no factual support for a claim that Philip Morris bankrolled his election.

He wrote that a Caperton claim could not be based on alleged ties to organizations that contributed to his campaign.

“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 wrote.

“When judges are elected, as the Illinois Constitution requires, it is inevitable and entirely appropriate that interest groups will support judges whose judicial philosophies they believe are most closely aligned with their own views.”

The Justices heard oral argument in March, with former governor Jim Thompson presenting the case for Philip Morris.

Last month, the Court ruled that the Fifth District overstepped its bounds.

They held that Tillery must challenge their decision in their court, by way of a petition to recall the mandate.

Tillery complied, and the Court reopened the original appeal.

Tillery has updated his allegations, to assert that Philip Morris indirectly supported Karmeier’s retention campaign last year.

In response, Odorizzi rejected any comparison to Caperton.

She wrote that Massey Coal chief executive Don Blankenship financed a Supreme Court campaign when his company had an important case headed for the Court.

“He donated $2.5 million to a political organization that supported his candidate and spent just over $500,000 in independent expenditures,” Odorizzi wrote.

“Blankenship spent $1 million more than both campaigns combined and three times the amount that the favored candidate was able to raise independently.”

She wrote that the U.S. Supreme Court found the contributions so disproportionate that reasonable persons would assume the judge felt a debt of gratitude.

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Organizations in this Story

Illinois Fifth District Appellate CourtU.S. Supreme CourtKorein TilleryMadison County Circuit CourtIllinois Supreme CourtPhilip Morris USAMayer Brown