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Wednesday, August 21, 2019

Philip Morris brief: Price lawyers can’t fabricate basis for Karmeier’s recusal through ’14 attack ads

By Record News | Jun 20, 2016

WASHINGTON – The U.S. Supreme Court has denied review of an Illinois Supreme Court decision that cleared Philip Morris of a $10 billion judgment. 

On June 20, the Justices rejected a petition from plaintiff Sharon Price, who won the judgment in the court of former Madison County circuit judge Nicholas Byron in 2003. 

The Supreme Court had denied review of the same case in 2006, after the Illinois Supreme Court reversed Byron. 

Fifth District appellate judges in Mount Vernon reinstated the judgment in 2014, but the Illinois Supreme Court found last year that they acted without authority. 

Price’s lead lawyer, Stephen Tillery of St. Louis, pleaded to the U.S. Supreme Court that Justice Lloyd Karmeier should have recused himself from last year’s decision. 

Tillery argued that public perception required recusal. 

He alleged that Karmeier received indirect contributions from Philip Morris for his election campaign in 2004 and his retention campaign in 2014. He also alleged that Karmeier showed bias in public statements in the retention campaign and on election night. 

Tillery built his argument on Caperton v. Massey Coal, a Supreme Court decision from 2008, finding a Justice in West Virginia should have recused himself from a case about a company whose owner gave $3 million to his campaign. 

Philip Morris lawyers replied in their opposition brief that, “The situation here is light years removed from Caperton.” 

They wrote that Price assumed that a contribution to a political group was a contribution to Karmeier because the group decided to support him. 

“If that were the law, litigants in states with elected judges would soon find themselves unable to support any political causes, lest they inadvertently provide a basis for a recusal motion,” they wrote. 

They wrote that due process never depended on mere public perception. 

“Public perceptions are by definition unreasonable if they are based on largely inaccurate and uninformed opinion,” they wrote. 

In 2014, Price’s lawyers contributed $1.76 million to Campaign for 2016, to run a television campaign against Karmeier’s retention, Philip Morris lawyers argued. 

“Campaign for 2016’s ads repeatedly and falsely portrayed Justice Karmeier as being corrupted by contributions in 2004 that supposedly came from Philip Morris and its unnamed allies,” they wrote. 

“Litigants surely cannot fabricate a basis for recusal through attack ads.” 

Former governor James Thompson filed the brief, along with Matthew Carter and Michaelle Odorizzi, both of Chicago, and Lisa Blatt of Washington. 

Tillery sued Philip Morris in 2000, claiming it deceived smokers into expecting health benefits from light and low tar brands. 

Byron denied a jury trial, held a bench trial, and adopted Tillery’s conclusions verbatim down to typographical errors. 

He entered the biggest judgment ever, with billions in compensatory damages, billions in punitive damages, and $1.77 billion in legal fees. 

Byron distributed sums to causes he deemed worthy, and he granted three percent of any unclaimed funds to each of 11 law schools. 

Philip Morris petitioned the Illinois Supreme Court for direct review, which the Court at first denied but later granted. 

The Court heard arguments but hadn’t reached a decision in 2004, when Karmeier ran on the Republican ticket and Gordon Maag ran on the Democrat ticket. 

Justice Robert Thomas recused himself after oral argument, after his personal lawyer, Joseph Power of Chicago, joined Tillery’s team. 

Karmeier won in 2004, and the Court reversed Byron in 2005. 

Justices Rita Garman and Mary Ann McMorrow held that federal law preempted Illinois consumer fraud law because the Federal Trade Commission authorized light and low tar labels. 

They did not reach other issues but expressed grave reservations about certification of the class and calculation of the damages. 

Karmeier and Justice Thomas Fitzgerald specially concurred, arguing that Price failed to prove any damages. 

Justices Charles Freeman and Thomas Kilbride dissented, finding Byron’s judgment reasonable. 

Tillery asked for rehearing and didn’t get it. 

He asked the U.S. Supreme Court for review and didn’t get it. 

The Illinois Supreme Court issued its mandate to Byron, who signed an order dismissing the case on Dec. 18, 2006. 

Ten days short of two years later, the Federal Trade Commission declared that it never authorized light and low tar labels. 

Tillery rushed to Madison County circuit court and petitioned for relief from final judgment, offering the commission’s action as new evidence. 

Byron’s successor, Circuit Judge Dennis Ruth, declared the petition untimely. 

Fifth Circuit judges found it timely and directed Ruth to consider the petition. 

He considered it and denied it, finding Tillery’s evidence wouldn’t have changed the result at the Supreme Court. 

Fifth District judges reversed Ruth, finding he engaged in improper speculation, and they reinstated the judgment. 

Philip Morris appealed, and Price moved for Karmeier to recuse himself or for the Court to disqualify him. 

Karmeier denied recusal last November, and all Justices but Karmeier and Thomas voted against disqualification. 

Karmeier joined a majority in ruling that Tillery pursued the wrong remedy. 

They found that instead of petitioning for relief in circuit court, he should have approached the Supreme Court with a motion to recall the mandate. 

Tillery filed such a motion, along with another motion to disqualify Karmeier. 

Both motions failed. 

Tillery sought review in Washington, arguing that Karmeier and his campaign “repeatedly disparaged petitioner’s attorneys to the press.” 

Philip Morris lawyers answered that Karmeier’s campaign comments were “measured, accurate and rather mild in the face of the extreme campaign mounted by petitioner’s counsel.” 

“Judges running for election or retention must have some breathing room to respond to their opponents’ criticism,” they wrote. 

They wrote that disqualifying elected judges for truthful responses to misleading attacks would put them in an impossible situation.

The Justices disposed of Tillery’s petition without comment, posting it with 97 other petitions they denied.

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