Federal judge orders deposition of Illinois justice in RICO suit

March 4, 2015

One of the hottest and ugliest judicial campaign battles of last fall was over Justice Lloyd Karmeier‘s reelection to the Illinois Supreme Court. Karmeier, who was first elected to the state high court in 2004 and subsequently voted to overturn billion-dollar judgments against Philip Morris and State Farm, faced a deluge of ads from plaintiffs’ lawyers who claimed he was beholden to corporate defendants that had supposedly bankrolled his 2004 campaign.

Justice Karmeier squeaked through the 2014 retention vote, but he continues to be dogged by questions about his original election. Last week U.S. District Judge David Herndon of East St. Louis, Illinois, ruled that plaintiffs’ lawyers representing a class of State Farm auto insurance policyholders may depose the state justice about the strategy and funding of his 2004 race.

The policyholders alleged in a 2012 racketeering suit against State Farm that the insurer secretly orchestrated Karmeier’s election, with the implicit expectation that he would vote to overturn a $1.05 billion class action judgment against the company. The Illinois Supreme Court, including Justice Karmeier, vacated the judgment in 2005 and declined a 2011 petition by the class to vacate its decision. The policyholders then filed the RICO suit asserting that State Farm and individual defendants conspired to install Karmeier on the Illinois Supreme Court in order to secure his vote to overturn the judgment.

The RICO complaint didn’t name the justice as a defendant, but in 2014 plaintiffs’ lawyers subpoenaed him to appear at a deposition. Justice Karmeier, represented by Anthony Martin of Sandberg Phoenix & Von Gontard, moved to quash the subpoena. He said that the RICO plaintiffs are not entitled to ask questions about the state Supreme Court’s deliberative process and shouldn’t be permitted to depose a judge based only on inflammatory allegations. “Impugning the integrity of an Illinois Supreme Court Justice, and indeed the court itself, through unsupported accusations of criminal activity is serious business,” the justice’s quash motion said. “It is also annoying, embarrassing, oppressive and unduly burdensome.”

Lawyers for the policyholders, led by Robert Clifford and Gordon Ball, replied that the deliberative privilege does not apply because they didn’t intend to ask Justice Karmeier about how the state Supreme Court reached its decision but about how he was recruited as a candidate for the high court and who backed the 2004 campaign.

U.S. Magistrate Judge Stephen Williams sided with Justice Karmeier in January, ruling that the plaintiffs were searching for information about the judge’s decision not to recuse himself from hearing State Farm’s appeal in 2005, which implicated the protected deliberative process. He also agreed with Justice Karmeier that allowing the deposition of a sitting justice, when plaintiffs haven’t offered evidence that he was complicit in the alleged fraud, “raises concerns for the dignity and integrity of the Illinois courts.” The magistrate said plaintiffs could ask questions of the justice in a narrowly tailored interrogatory that asked only about State Farm’s involvement with his campaign.

Judge Herndon felt otherwise. “What has been pleaded in this complaint, whether it can ever be proven, must be accorded a fair opportunity for both sides to explore the facts and for the public, in the face of such allegations, to learn the truth,” he wrote in last week’s decision.

Herndon, who was appointed by President Clinton, previously denied the RICO defendants’ motion to dismiss the suit. Last January, the 7th U.S. Circuit Court of Appeals denied the defendants’ motion for a writ of mandamus against the judge.

Plaintiffs’ lawyer Clifford and Karmeier counsel Martin did not respond to requests for comment.

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