Ideology has long been at the heart of high-profile judicial battles, whether the judges are elected or appointed. But is it different when the fight puts a specific case on the line?
TRANSCRIPT: From Illinois Public Radio, it’s State of the State. I’m Brian Mackey, and the state of the state today is — ethical?
JUSTICE LLOYD KARMEIER: “I was surprised by the tone, the intensity and by the people who were behind it.”
Last year, a group of lawyers spent more than $2 million in a last-minute attempt to fire Justice Lloyd Karmeier of the Illinois Supreme Court. The investment did not pay off: Karmeier won his retention election, stayed on the court, and last week (1) cast just the decisive vote the lawyers were trying to prevent, costing them the biggest, most expensive judgment in Illinois history. This week on State of the State, we talk to one of the lawyers fighting Philip Morris and Justice Karmeier — and we’ll revisit our conversation with Karmeier from shortly after his retention election last year.
Big money in judicial races is nothing unusual in Illinois. But it was unusual to have lawyers with a direct interest in a case funding a campaign to defeat a sitting judge, let alone a Supreme Court justice.
The case in question is Price v. Philip Morris — commonly known as the “light cigarettes" case. More than a decade ago, Sharon Price was the lead plaintiff in a class action lawsuit against the cigarette maker. She alleged that the company defrauded her and other customers into thinking “light” and “low-tar” cigarettes were safer than regular. The problem for smokers is that, because of the thicker filter on these cigarettes, they’d just inhale harder, getting the same amount of harmful chemicals in their lungs. The lawyers alleged that Philip Morris knew about this, and a judge in Madison County ruled in favor of the smokers. He then awarded the class members $10.1 billion dollars.
That was back in 2003, and it was the largest judgment in Illinois history, by a long shot. Philip Morris appealed directly to the Illinois Supreme Court. This is where Karmeier comes on the scene. In 2004, while the case was pending, Karmeier ran and won his seat on the Surpeme Court. He’d run as a Republican in a southern Illinois district that had long been held by Democrats. Trial lawyers on the one side and corporations on the other spent millions of dollars, making it — at least until this month — the most expensive judicial campaign in American history.
Although Karmeier joined the court while the Price case was ongoing, another justice was already sitting out the decision, and it takes four of the seven justices to issue an opinion. Karmeier reviewed the record, and in 2005 cast one of four votes to issue an opinion in the case.
NPR HOST: “Cigarette giant Philip Morris won a major victory today when the Illinois Supreme Court threw out a $10-billion judgment against the company. The justices also ordered a lower court to dismiss the class-action lawsuit, which accused the cigarette maker of fraud."
You’d think that would be that. But the Philip Morris case has been rattling around the courts ever since. A few years ago, the plaintiffs went to a trial judge, trying to revive things, saying recent disclosures by the Federal Trade Commission undercut the Illinois Supreme Court’s reasoning ten years ago — that Philip Morris had been authorized to market “light” and “low-tar” cigarettes.
Last year, when the matter again came before the Supreme Court, the lawyers for the smokers asked Karmeier to recuse himself. They say Philip Morris provided millions of dollars toward his 2004 campaign for the court. But Karmeier refused to step aside, and last week cast another vote in favor of Philip Morris. As with a decade before, Karmeier’s provided one of the minimum four votes needed to issue an opinion — without him, it seems Philip Morris would have lost.
Through a court spokeswoman, Karmeier declined to talk. The lawyers for the smokers still have until later this month to ask the justices to reconsider their decision. But Karmeier did agree to an extended interview late last year.
He says he had no knowledge of Philip Morris having anything to do with funding his campaign. In fact, he says he never looked up any of his contributors to his original campaign.
KARMEIER: “You just don’t look at it. Now they’re public and they’re published, and people are a little surprised at that. But when I was running in 2004, the given way for judges to do it was to simply avoid and not know, and then you couldn’t be considered having any bias or problems. Now the problem of course with that is that everybody else looks at it. And then they put it in the pleadings or they put it in the paper, and they say, well, he took this. Well by then, of course, it’s knowledge to me, too, and it changes the landscape a little bit.”
Indeed, lawyers for the smokers put all sorts of allegations about who backed Karmeier’s campaign into their pleadings, alleging that there was at least an appearance of impropriety. Karmeier says he would prefer that the entire court decide whether there’s enough of such an appearance to mean a judge shouldn’t hear a case, but the Illinois Supreme Court has said recusal is something that must be decided by individual judges, alone.
That’s about the appearance of impropriety.
'Is that the appearance of impropriety? If it is, then we've got difficulties, because anybody can create it then.'
KARMEIER: "The other part of the concerns that people should have is: will the judge be fair? And that only you can know in your heart. … If you think that it would cause you difficulty or embarrassment at some future date with either the parties on either side, you better get out. Because you can’t be there; you’ve got to be comfortable. But the appearance of impropriety — we’ve completely lost control of that because people can plead something, or they can put something in the newspaper, and the public then perceives it. And is that the appearance of impropriety? If it is, then we’ve got difficulties, because anybody can create it then.”
Last year, when Karmeier decided he’d remain on the Philip Morris case, he did so an an extraordinary 16-page order.
He noted that the matter was before the court just before of his retention election, and predicted that his decision "may have an effect on my candidacy,” which he called "an occupational hazard in our system for electing judges.”
He had no idea. Within a month, a political action committee began spending money on ads aimed at defeating Karmeier’s bid for retention.
KARMEIER: “I was surprised by the tone, the intensity and by the people who were behind it.”
Several of those people — there were actually just four individuals and three law firms — had direct ties to the Philip Morris case. That includes George Zelcs, one of the smokers’ lawyers. Last week, he told me he was “disappointed” that the court once again ruled in favor of Philip Morris. I took the opportunity to ask him:
MACKEY: “Was there anything inappropriate about you contributing to a campaign to unseat a justice as this case was pending?"
'Everything we did was above-the-board and open and obvious.'
GEORGE ZELCS: “Absolutely not. … We openly funded a campaign that brought issues that we thought were important for voters to know about. It was all open, up-front and done with no intent to hide behind curtains or anything else. And so unless you’re saying that someone that’s participating in a case doesn’t have the right to participate in the electoral process, my response is that everything we did was above-the-board and open and obvious, and that we thought we raised important issues."
MACKEY: “I mean, the governor himself — part of his so-called Turnaround Agenda this year was to bar specifically trial lawyers from contributing to judicial campaigns."
ZELCS: “Well, I’m sure the governor has all kinds of issues on his agenda as well, and this probably isn’t the conversation in which to discuss those. But, you know …"
MACKEY: “But as far as you’re concerned, no concerns or qualms — you fully stand behind your obviously public contributions?"
ZELCS: “Absolutely. Absolutely."
Zelcs told me his side was still weighing its options. The Illinois Supreme Court didn’t actually shut the door completely on their case — leaving them another avenue of appeal in Illinois. Or they could try taking the conflict-of-interest issue to the United States Supreme Court. With more than $10 billion dollars on the line, it’s likely we haven’t heard the last of Price v. Philip Morris.
That’s it for this week’s State of the State. You can find my #longread on the campaign to fire Justice Karmeier on our website, WUIS.org. While there, you can also subscribe to this podcast. Thanks for listening. I’m Brian Mackey.
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Music: "Campana: Berlin By Overnight" by Max Richter.
1 The opinion, Price v. Philip Morris (PDF), was issued Nov. 4, 2015. The transcript says "last week" because this podcast was initially broadcast on WUIS-FM on Nov. 10. ?
