Donations complicate Philip Morris tobacco suit
By Kevin McDermott
POST-DISPATCH SPRINGFIELD BUREAU
12/17/2005
SPRINGFIELD, ILL.

A lobbying group that filed a brief defending Philip Morris USA in a massive Illinois lawsuit contributed more than $1 million last year to state Supreme Court Justice Lloyd Karmeier, who helped decide that suit in the tobacco giant's favor last week.

Philip Morris' hired legal team donated an additional $16,800 to Karmeier, state records show.

Meanwhile, the St. Louis-area lead attorney for the losing side had donated more than $100,000 to groups opposing Karmeier's election. There is nothing illegal about the donations, as Illinois law doesn't limit the source or size of campaign contributions to judges or anyone else. However, campaign reform advocates say the circumstances still raise concern.

"This is a very good example of why both sides were so interested in this race," said Cindi Canary of the Illinois Campaign for Political Reform. "Our judicial system is in the middle of a high-stakes shootout. It makes it very difficult for anyone who gets to the bench to insulate themselves from their contributors."

Karmeier, a Republican, and his Democratic opponent, Gordon Maag, fought for the high court's vacant Southern Illinois seat in 2004 in the most expensive judicial election in U.S. history.

The two candidates spend a combined total of more than $8 million - raised largely by business groups that believed Karmeier would rein in lawsuits against corporate defendants, and plaintiffs attorneys who were betting Maag would prevent limits on the state's litigation system. Karmeier won.

While the campaign for the high court was being fought, Philip Morris was appealing to that court, trying to overturn a record $10.1 billion judgment. Madison County Judge Nicholas Byron had imposed the judgment in 2003 in a suit by plaintiffs alleging the tobacco company had fraudulently marketed its "light" cigarettes as safer than regular ones.

The Supreme Court found on Thursday for Philip Morris, on grounds that the company had consent from federal regulators to marketing strategies. Karmeier sided with the 4-2 majority, which couldn't have overturned the judgment had it had one less vote. (Court decisions need a minimum of four votes from the seven-member court.)

State records show donations in Karmeier's election to the high court last year included $1.19 million from the Illinois Civil Justice League, a pro-business organization that had earlier filed a "friend of the court" brief on behalf of the cigarette maker in the suit.

Plaintiffs in the suit are considering a U.S. Supreme Court appeal, and Karmeier is prohibited from discussing any facet of a pending case. Supreme Court spokesman Joe Tybor said last week that Karmeier "would not allow campaign contributors to have any effect on his ruling in this or any other case."

Justice League spokesman Ed Murnane defended the donations last week, saying they weren't intended to sway the court on specific cases, but rather to elect a more conservative court that would rein in "the abuses we've seen" in civil litigation, especially in Madison County.

"A candidate does not necessarily know who is contributing to his campaign," said Murnane, who called it "terribly insulting" to suggest that a Supreme Court justice might be swayed in specific court decisions by previous political donations. "I understand why you're raising the question ... (but) we supported him because he's a conservative."

Plaintiffs attorney Stephen Tillery, who has offices in St. Louis and Swansea, was among top litigators who donated heavily to Maag, Karmeier's opponent. Records show Tillery or his firm spent more than $18,000 for expenses related to Maag's campaign, and donated $91,600 to a pro-plaintiffs lobbying group that was one of Maag's biggest donors.

Tillery didn't return a message seeking comment.

Getting into federal court He may not have grounds for a federal appeal, said Anthony Sebok, a law professor at Brooklyn Law School who is an expert on tobacco litigation.

"This was a very carefully crafted decision that I suspect was the result of a lot of horse trading inside the court," Sebok said. "The basis for the decision is under state law. The law under which it was decided is not one in which the U.S. Supreme Court can get jurisdiction."

William Schroeder, a law professor at Southern Illinois University Carbondale, said Tillery would have to find a federal question to get into federal court.

"There are two ways he can do it," Schroeder said. "He can say that there is some federal constitutional issue involved, but that's a loser because there isn't any.

"But there is one possible hook in the form of a pre-emption question.

That is, since federal law pre-empted the Illinois consumer-protection stuff, you've got the argument that federal courts need to address the issue."

Paul Hampel of the Post-Dispatch staff contributed to this story.